Abortion. Immigration. Sex discrimination against LGBTQ employees. Gun violence. These and other issues darken the skies over the Supreme Court even as President Trump’s woes and his potential impeachment gather like storm clouds on the horizon. As the 2020 campaigns ramp up, controversies flash like lightning over the court’s marble pillars: continued questions surrounding the confirmation of Justice Brett Kavanaugh. The age and health of some of his colleagues. Whether the court should be restructured or term-limited. Whether the conservative justices will sustain virtual bans on abortion, in contravention of settled Supreme Court precedent. Whether President Trump can continue to stonewall congressional oversight.
The new Supreme Court term, set to begin this week, is shaping up to be a category 5 political hurricane.
Can the court weather a storm of this magnitude? That is largely up to Chief Justice John Roberts, who has made it clear he wants his court to fly above the political thunder. But how? Can Roberts hew closely to the Constitution’s text, history and values, each of the many times they lead to progressive outcomes? Can he uphold precedent he might abhor, because that precedent comports with the Constitution? Can he separate the court from even the appearance of favoritism, especially when it comes to conservative legal activists, business interests, or President Trump?
These should be easy lifts for any judge. But as judicially modest as these tasks might be, it is left to be seen whether the chief justice can accomplish them in this moment.
Take, for example, President Trump’s decision to end President Obama’s Deferred Action for Childhood Arrivals (DACA) policy, which authorized the temporary deferred removal of certain young people brought to the United States as children. Remember, DACA recipients are part of communities across America, contributing to our economy and society, including our military. Now they are at risk of having their families torn apart. President Trump’s reason for terminating DACA — claiming the policy has “legal and constitutional defects” — is a bogus pretext. The law forbids such a pretext from justifying DACA’s termination.
In fact, DACA is an entirely proper use of discretion to focus immigration enforcement only on those undocumented persons who pose a danger to the public. With not nearly enough resources to remove every single undocumented person in the nation, each administration needs to choose how to deploy those resources effectively. President Obama decided to authorize deferred action for those who came to our country as children, who know America as their only home, and who have contributed to our communities since they arrived.
President Trump knows DACA is incredibly popular — and that devastating the lives and families of DACA recipients draws righteous outrage — so he wants the Supreme Court to say he had no choice but to end DACA. Early in President Trump’s tenure, Chief Justice Roberts was willing to go along with the president by upholding his travel and refugee ban, but last term, Roberts stood up to the contrived legal arguments in the census citizenship question case. Where will Roberts be now that DACA recipients need him to stand up for them?
Another example deals with sex discrimination. Some employers want the right to discriminate against gay, lesbian, bisexual and transgender employees for reasons rooted in those employees’ sex. Some employers don’t like that some of their employees are attracted to people of the same sex. Others don’t like that some employees identify and present as a sex different from the one they were assigned at birth. Either way, such discrimination is explicitly forbidden by the text of Title VII of the Civil Rights Act, which makes it unlawful “to discriminate against any individual … because of such individual’s … sex.” Can the chief justice faithfully apply the text of the law that prohibits such discrimination, disappointing influential conservative activists?
With these and many other issues swirling on the docket, there’s no denying that the eye of a perfect ideological storm is heading straight for the Supreme Court. Chief Justice Roberts already is pelted by litigation from conservatives seeking to win victories in court that they have failed to win at the ballot box. And he’s had to brace against the buffeting winds of a president who apparently believes he has the court in his pocket.
Meanwhile, “we, the people” look on, hoping for enough institutional sunlight to show through, proving that our system still works, that our courts can follow the Constitution, instead of politics.
Soon we will learn if the chief justice can pilot his court above the new term’s brewing political hurricane, or if instead he will be swept away by it.
Elizabeth Wydra is president of the Constitutional Accountability Center, a public interest law firm and think tank. Follow on Twitter @MyConstitution.