Reports surfaced last week claiming that Chief Justice John Roberts was seeking behind the scenes to prevent the overturning of Roe v. Wade.
Since Roberts had earlier crafted opinions critical of Roe, could his reversal have been yet another example of the justice fudging his holding to fit an outcome that prioritized his court's image over the actual law?
That pattern of placing image over law was also evident in his recent decision upholding President Joe Biden's elimination of the Trump-era Remain in Mexico asylum policy.
Roberts was joined in his majority decision by the three liberal judges, Sonia Sotomayor, Stephen Breyer, and Elena Kagan, as well as Trump appointee Brett Kavanaugh, in determining that Biden had discretion under the 2019 Migrant Protection Protocols related to Section 1229a of the Immigration and Nationality Act to allow illegal immigrants to stay in the United States pending their asylum hearings.
That law stated that the director of homeland security: 1) may return to Mexico an individual seeking asylum, 2) shall detain any person on American soil pending their hearing if not deported previously and 3) may release individual aliens on "parole," but "only on a case-by-case basis for urgent humanitarian reasons or a significant public benefit." §1182(d)(5)(A).
The debate centered on the words "may" and "shall."
In the dissent, Justice Samuel Alito noted that the phrase "shall" detain is mandatory, and that if U.S. agencies did not detain the individual, the illegal individual had to be returned to Mexico (unless a parole was warranted on case-by-case analyses that rarely occurred).
Roberts employed a strained logic claiming that since the agencies were overwhelmed and could not possibly house all of the hundreds of thousands of illegal individuals flooding the border seeking asylum, the director of homeland security was now free to use his discretion to allow them to stay on American soil.
Roberts was looking at the term "may" in a vacuum, without attaching it to the other clause in the statute which prohibits asylum seekers from being allowed to stay on U.S. soil unless detained pending their hearing.
Why would this perceived conservative justice take such a tortured position, knowing it will wreak havoc on the U.S. economy and essentially declare the southern border as being open to any comers?
The answer can be found in similar twisted logic Roberts utilized in previous cases, including Obamacare, Deferred Action for Childhood Arrivals (DACA), and his most recent decision in what some believe is Pennsylvania’s questionable changing of election rules.
It appears that in all these cases, Roberts was ignoring what the actual law was. Instead, he was fudging his decision to fit a pre-ordained conclusion that might buffer the court from public criticism.
Prior to his decision on Obamacare, Roberts had hinted the mandate was unconstitutional.
But in his majority decision, Robert shocked some in the legal community in approving Obamacare by concocting a theory that the program was not an unconstitutional mandate forcing citizens to buy healthcare, but was a tax, which Congress had the ability to regulate.
Many speculated Roberts took this position to avoid seeming too partisan and to ingratiate himself with the cocktail party crowd in the Washington beltway.
The illegal immigration mess we find ourselves in today accelerated when President Barack Obama unilaterally implemented DACA, which granted amnesty and working papers to millions of illegal individuals under the age of 30.
Conservatives strongly believed that the president had no such authority to implement such a sweeping change without congressional approval. Yet, Roberts went out of his way to manufacture a "procedural" reason why the court would not overturn it, bizarrely claiming the Trump administration did not present "a reasoned explanation for its action."
And then there was the 2020 Pennsylvania election case. The United States Constitution is clear that only a state Legislature or Congress can amend election laws, yet Pennsylvania's Democrats, with assistance from its Democratically controlled courts, changed the state's election laws weeks before the election without obtaining legislative approval.
When Republicans petitioned the Supreme Court to stop this obviously unconstitutional maneuver, Roberts sided with the liberals declining review. The plaintiffs were told to come back after the election.
When the Republicans did, Roberts led the liberal sector of the court in claiming that the issue was now moot. To Republicans, this was a case of: "Heads they win, tails we lose."
Despite the fact that many legal scholars thought Pennsylvania's actions clearly violated the United States Constitution, Roberts punted. One can only surmise that he just didn't want the court appearing as though it was tipping the scales in an election (though that didn't seem to stop an earlier court from doing so when it stopped the count in Florida after the 2000 election).
Some will dismiss these arguments, pointing to the decision overturning Roe v. Wade. But, let's not forget that Roberts' concurring opinion stopped short of overturning Roe‘s constitutionality, and sought only to uphold the limits imposed by Mississippi.
Either there is a privacy right embedded in the Constitution or there is not. Yet Roberts tries to have it both ways once again by fashioning a compromise and then shoehorning his legal interpretation to fit his outcome designed primarily to protect the court's image.
Trump's Remain in Mexico policy finally got control of our border after years of the far left fighting every step of the way. Who would have thought that it would be a conservative court that threw all that progress away?
Steve Levy is President of Common Sense Strategies, a political consulting firm. He served as Suffolk County Executive, as a NYS Assemblyman, and host of "The Steve Levy Radio Show." He is the author of "Solutions to America's Problems" and "Bias in the Media." www.SteveLevy.info, Twitter @SteveLevyNY, [email protected] Read Steve Levy's Reports — More Here.
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