Justice Clarence Thomas was through pretending.
The Supreme Court’s decision Thursday that the Trump administration had overstepped its bounds in trying to end President Barack Obama’s policy of allowing a certain class of illegal aliens to remain in the country made a great show of paying lip service to the idea of following the law.
But Thomas’ dissent poked through the pretense to state what was actually happening: The suspiciously pliant Chief Justice John Roberts had found a way — once again — to justify joining the court’s liberal bloc to arrive at a liberal conclusion.
“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Thomas wrote.
In his dissent in the SCOTUS DACA case Justice Thomas says The decision is “An effort to avoid a politically controversial but legally correct decision.” pic.twitter.com/kFvWt4f2BH
— Daily Caller (@DailyCaller) June 18, 2020
There are few more damning words that can be said about a court ruling than that it substituted political expedience for sound legal reasoning. For a court that’s supposedly dedicated to upholding the principles of the United States Constitution, it’s hypocrisy in its most poisonous form.
Thursday’s court ruling rejected the Trump administration’s efforts to end the Deferred Action for Childhood Arrivals program, the Obama-era policy that protected illegal aliens from deportation if they were brought to the country as children.
But a federal policy’s popularity, or “Cryin’ Chuck” Schumer and his political histrionics, aren’t supposed to be how Supreme Court decisions are made.
In fact, politics shouldn’t even the issue, Thomas wrote. Because when political considerations supplant constitutional concerns, it’s the country as a whole that suffers because the door is open to more chaotic controversies in the future.
“[T]he majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong — the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government. [Emphasis added.]
“Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.”
According to Jonathan Adler, a Case Western Reserve University law professor writing at Reason’s Volokh Conspiracy blog, politically driven decisions have become standard practice for Chief Justice John Roberts.
“He dislikes decisions that alter precedent, invalidate federal statutes, sweep too broadly or (as here) upset settled expectations or cause administrative disruptions. This is also a sufficient priority for him that his concern for disruption will trump his concern for adhering to statutory text or constitutional principle,” Adler wrote.
Well, it’s fair to ask, if a chief justice of the Supreme Court allows his distaste for upsetting “settled expectations” to outweigh “statutory text or constitutional principle,” then why do we have a Supreme Court at all?
Conservatives haven’t trusted Roberts since the astounding, disgraceful and legally incoherent ruling that preserved Obamacare in 2012.
In doing so, as conservative commentator Avik Roy wrote on Forbes at the time, Roberts “invented out of whole cloth a new definition of taxation that contravenes precedent. … And he forever tarnished his legacy as a Justice, and his promise to the nation that he would serve as an umpire, and ‘remember that it’s my job to call balls and strikes, and not to pitch or bat.'”
That was then, and this is now. And Roberts has pretty well kept the course of choosing his result, then making up the law to go along with it.
In a May 29 decision upholding an assault by the state of California on religious freedoms, Roberts dismissed arguments about the First Amendment — a cornerstone of American liberty — by likening church attendance to “lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.”
That’s nonsense on stilts. And even Roberts has to know it.
The drift of the Supreme Court in the Trump era has been unmistakable.
As Adler, who is apparently no fan of Trump, notes in his Reason piece, government lawyers have to be painstaking to make sure “to never to give a court that dislikes a policy decision an excuse to invalidate the action on procedural grounds.”
That’s another way of saying some federal court justices, and maybe even Supreme Court chief justices, will let their personal and political preferences dictate their legal decisions.
Thomas, confirmed in 1991, is the court’s longest-serving justice at the moment, has obviously seen plenty of court decisions in the course of the past three decades.
And that’s enough for him to speak plainly in Thursday’s dissent. The DACA program was illegal from the beginning, he wrote. The Trump administration’s decision to end it should be the end of the matter.
“The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end.”
It’s not the end, thanks to John Roberts and the court’s liberal wing. But if there’s any silver lining in Thursday’s ruling, it’s that it was based on procedural grounds, rather than President Donald Trump’s actual authority to end the DACA program completely.
That means, if Trump is re-elected, his administration will have a new chance to end a clearly illegal policy Barack Obama himself admitted he didn’t have the authority for, before he did it.
And if Trump wins re-election in November, the likelihood of his appointing at least one more Supreme Court justice is fairly high, given the advanced ages of some on the court today.
It’s a chance for the court to get more justices like Thomas, who don’t pretend that “politically controversial” is more important than “legally correct.”
Thursday’s ruling, like the May 29 decision on religious liberty in the California case and last week’s rejection of a slate of Second Amendment cases, gives Trump supporters all the more reason to ensure he returns to the Oval Office comes January 2021.
Even for conservatives who are uneasy with some aspects of the Trump presidency, the Supreme Court’s decisions during his time in office make it even more apparent that a Trump re-election is key to preserving American liberties from the grasping hands of a progressive state.
And there’s no sense pretending otherwise.
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