Conservatives blast Roberts as turncoat – POLITICO

John Roberts

Supreme Court Chief Justice John Roberts’ stance on citizenship in the 2020 census has frustrated many on the right. | Mark Humphrey/AP Photo


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In 5-4 decisions on federal rules and citizenship question, chief justice joins court liberals and frustrates the right.

06/27/2019 08:54 PM EDT

Chief Justice John Roberts just keeps on breaking conservatives’ hearts.

On two consecutive days this week, Roberts sided with the court’s liberal wing to deliver 5-4 rulings that deeply disappointed right-leaning lawyers and pundits who had been counting on near-certain victory from a court now stocked with a pair of Trump-appointed justices handpicked by conservative legal activists.

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On Thursday, Roberts stunned many court watchers by invalidating a Trump administration decision to add a question on citizenship to the 2020 census.

Adding to the sting is the fact that the chief justice wasn’t just along for the ride on the closely watched ruling: He penned the majority opinion, which essentially accused Commerce Secretary Wilbur Ross of lying about his reasons for seeking to add the question on citizenship.

“Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision,” Roberts wrote, backed by the court’s four liberals. He goes on to rip the government’s claims in the case as apparently “contrived” and “a distraction.”

A day earlier, Roberts was the sole GOP appointee to side with the liberal wing in a case many legal conservatives were hoping would deal a major blow to the much-loathed administrative state by overturning decades of precedent allowing federal agencies wide leeway to interpret their own regulations.

Among some conservatives close to Trump, the sense of anger and betrayal was palpable, with some on the right suffering painful flashbacks to Roberts’ 2012 decision to join with the court’s Democratic appointees and uphold Obamacare’s individual mandate even as all of his Republican-appointed colleagues dissented. The anger seemed especially acute with possible abortion-related cases on the horizon for the next term.

“I’m for impeaching the Chief Justice for lying to all of us about his support of the Constitution. He is responsible for Robertscare and now he is angling for vast numbers of illegal residents to help Dems hold Congress. Enough Deception from GOP judges on the Constitution,” American Conservative Union chairman Matt Schlapp tweeted shortly after the Thursday ruling.

“I want to Impeach Roberts and Trump would get another pick. Sounds good to me,”’ Schlapp added. “Chief Justice John Roberts ‘fixed’ Obamacare and now he found an I significant [sic] excuse to allow those here illegally to help Dems keep the house majority. He lied to all of us and under oath in the Senate. It’s perfectly legal to ask citizenship ? on census.”

Former White House aide Sebastian Gorka also weighed in to express his disgust. “Chief Justice Roberts of the #SCOTUS betrays the US Constitution again,” Gorka said on Twitter.

Conservative pundit and former GOP Senate candidate Dan Bongino echoed recurring conservative complaints that Roberts is looking to curry favor on the Washington dinner party circuit.

“John Roberts is terrified of the liberal op-ed columnists. They know they hold him captive. They can easily sway his opinions by issuing their ‘warnings’ to him through their columns,” Bongino wrote. “He’s not a judge anymore, he’s a politician.”

Not all conservatives were up in arms about Roberts’ perceived defection Thursday on the census case.

Former Reagan White House lawyer and radio host Hugh Hewitt noted that on the same day the census case came down, Roberts joined with the court’s conservatives in a 5-4 decision that decisively rejected any role for courts in remedying political gerrymandering. The chief justice also took the pen for the majority in that fight, flatly dismissing the idea of courts resolving such disputes.

Hewitt declared the gerrymandering decision to be far more consequential.
“Conservatives coiled to condemn Chief Justice over citizenship question need to focus on this incredibly important, far reaching and absolutely correct decision,” Hewitt tweeted. “Would anyone preferring that #SCOTUS clearly uphold census question and at same time continue the decades of absurd ambiguity about the clearly-delegated-to-political-bodies re-districting power please raise their hands? I know you’d like both, but if you had to choose either?”

There is a degree of selective outrage at Roberts. Trump’s newest nominee to the court, Justice Neil Gorsuch, sided with liberals in a series of 5-4, late-term decisions this year, but they were less high-profile. As Gorsuch ruled in favor of criminal defendants — including a child pornography convict — in a pair of cases related to sentencing, there was no outcry from the right that Trump’s pick was abandoning his backers.

Still, Roberts’ tendency to side with liberals in some cases embraced by many Republican activists seems to grate on many conservative lawyers, including some who helped lead the fight to confirm him.

“I still haven’t fully psychologically accepted the truth about Roberts,” said Curt Levey of the Committee for Justice in an interview.

“He may in his heart think he’s a conservative, but he’s not going to be what conservatives want and liberals fear. … With each passing year — maybe this doesn’t happen every year, but we’ve seen enough of it, we kind of have to accept he’s roughly another Kennedy,” Levey said, referring to Justice Anthony Kennedy, the Reagan appointee who dismayed conservatives by upholding abortion rights and leading the court to declare a constitutional right to same-sex marriage.

Levey said the political polarization in the country may be prodding Roberts to go further than he otherwise would in trying to ensure that the court is viewed as moderate and not being buffeted by the political winds. Last November, when President Donald Trump made derisive comments about “Obama judges,” Roberts shot back with a statement declaring “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. … What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

“At the end of the day, Roberts wants the court to be well-respected,” Levey said, calling the chief justice “a compromiser and people pleaser.”

“I think the hysteria on the left about an ‘arch conservative’ court is having an effect,” the legal activist said. “At the end of the day, [Roberts] wants the court to be well respected and a highly divided nation is a threat to the legitimacy of the court because with every decision the half the public is convinced the court is acting for political reasons.”

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