Is this the moment John Roberts became Anthony Kennedy?
The U.S. Supreme Court dealt a blow to President Donald Trump on a signature issue, refusing to let him start automatically rejecting asylum bids by people who cross the Mexican border illegally.
The justices’ order, on a 5-4 vote with Chief Justice John Roberts in the majority, left in effect a lower court decision that temporarily bars the president from changing the rules for people who claim asylum after entering the country from Mexico. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh dissented.
Although the legal fight isn’t over, the high court rebuff of Trump’s request to block the order suggests skepticism about the administration’s legal case.
This is no random case. The lower-court decision is the one that launched a brief war of words between Trump and Roberts last month. Judge Jon Tigar, an Obama appointee, blocked the White House from instituting its new policy requiring migrants seeking asylum to apply at a port of entry. If they attempt to apply for asylum by crossing illegally and surrendering to the Border Patrol, Trump wants to be able to toss those applications straight in the trash. It’s all about incentives. Want asylum? Then seek it in an orderly, law-abiding way.
The problem, said Tigar, is that federal law doesn’t require illegals who are seeking asylum to enter the U.S. at a port of entry. What it says is this:
(1) In general. – Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 235(b).
The law says they can apply no matter how they enter. If POTUS doesn’t like that rule, there’s a straightforward solution. Get Congress to change it. Offer Chuck Schumer something to make him play ball. Trump, however, was annoyed that another g-ddamned pro-amnesty judge from the Left Coast had blocked him on immigration. Which led him, famously, to call Tigar an “Obama judge” — and to say this:
“You go to Ninth Circuit and it’s a disgrace, and I’m going to put in a major complaint. Because you cannot win, if you’re us, a case in the Ninth Circuit,” Trump said. “Every case gets filed in the Ninth Circuit. … We get beaten, and then we end up having to go to the Supreme Court — like the travel ban — and we won. We’re gonna have to look at that.”
John Roberts didn’t care for the “Obama judge” criticism and responded with a statement at the time, an unusual move for a chief justice:
Wow. After Trump said he was going to file a complaint about the 9th Circuit Court, Chief Justice John Roberts said: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges…" Per @JoanBiskupic pic.twitter.com/xK2o8GMSI8
— Kaitlan Collins (@kaitlancollins) November 21, 2018
Trump finally got his wish today of having SCOTUS review Tigar’s decision, asking the Court to stay his order and allow DHS to start rejecting asylum claims by people who’ve crossed illegally. The ruling: Denied. 5-4, with you-know-who as the deciding vote. John Roberts: Not a “Trump judge.”
I’m a little surprised. Not that Roberts would vote with the liberals — we’ve experienced that before in the most painful way — but that he’d do it in this case, teeing up an obvious “Roberts screwed Trump as revenge for the ‘Obama judge’ comment” theory. After all, this wasn’t a ruling on the merits of the government’s case. Roberts could have voted with the conservatives to stay Tigar’s ruling and then, later, if he agreed that Tigar was right and Trump was wrong on the law, upheld the lower court’s ruling. Roberts defenders would answer that by saying (rightly) that it’d be improper for him to let his spat with the president influence his views on the case either way; if he opposed a stay, it must have been on the merits. Perhaps. And yes, of course it’s still possible that Roberts will side with the conservatives when this case finally gets a full hearing before the Court. The fact remains, though, that Trump will demagogue Roberts’s vote here as a matter of bias and plenty of people will believe him, having been primed for years to believe that all adverse outcomes are a product of bias and unfairness.
Roberts probably concluded that there was no good option. Side with the liberals and he’d be accused by Trump of being spiteful after their “Obama judge” skirmish. Side with Trump and he’d be accused by liberals of having been cowed by Trump into voting the conservative party line. He may have decided to just vote his conscience and let the political chips fall where they may. Big fun forthcoming for him when he has to rule again on the merits of this case, with both sides now watching it, and him, intently.
Oh, because I know you’re wondering how Ginsburg managed to cast a vote here when she’s in the hospital in New York, your exit quotation:
NBC News has learned Justice Ruth Bader Ginsburg voted FROM HER HOSPITAL BED to refuse to let the government enforce Pres. Trump's proposed restriction on asylum. The court voted 5-4 to leave a lower court ruling in place that blocks enforcement of the crackdown. @PeteWilliamsNBC
— Gary Grumbach (@GaryGrumbach) December 21, 2018