Chief Justice Roberts’ dilemma: Column
By Rich Elfers
How did John Roberts, chief justice of the United States, avoid appearing partisan in the Supreme Court’s recent immigration ban decision? The answer lies in some pretty fascinating fast footwork, according to a June 26, 2017, article in “The Economist” called, “The Supreme Court’s Curious Compromise on the Travel Ban.”
President Trump issued two travel bans through executive orders against travelers coming from Arab countries: Iran, Iraq, Libya, Sudan, Somalia, Syria and Yemen for 90 days. Later, in the revised second ban, Iraq was removed from the list, making it six Muslim-majority countries.
This legal battle has raged for six months, with several Federal Circuit Court judges knocking down the bans as unconstitutional. To avoid appearing political, Roberts and the court followed ancient King Solomon’s example and “cut the baby in half.”
At first glance, the court’s decision appears to give a resounding victory to President Trump. The lower court injunctions were overturned – partially and temporarily. The court also agreed to fully vet the case in October 2017, when the new court year begins.
Digging deeper into the 6-3 decision demonstrates a more nuanced perspective. It also gives us a deeper insight into the genius of Chief Justice Roberts. The injunctions are to be lifted only against foreign nationals from those six countries “who lack any bona fide relationship with a person or entity in the United States.”
In other words, since most nationals wanting to enter the United States have U.S. connections with persons or businesses/universities, such people cannot be considered part of the president’s ban and are therefore allowed to enter the country. For those who do not have these connections, there will be a 90-day waiting period.
The three conservative justices who voted against this decision, Thomas, Alito and Gorsuch, wrote separately that they would have supported the travel ban in full, as President Trump had ordered, citing the flood of litigation that is likely to clog the courts as a result of the majority’s decision.
Chief Justice Roberts sided with the liberals on the court, probably not because he has become a liberal, but because he is more deeply concerned with the Supreme Court’s image and reputation than he is getting involved with a political hot potato. He does not want his court to be written off as partisan.
Roberts’ shrewd decision to delay until October before completely vetting the court cases means that it is very likely the cases will never have to be heard at all. Ninety days from the recent late June decision works out to be late September, five days before the court is scheduled to begin its new calendar. By that time, the travel ban time period will have expired.
The court majority noted that, since the administration did not request an expedited decision, which would have taken place in July, those six justices took advantage of the oversight to avoid dealing with the decision at all.
In law, words matter. Chief Justice Roberts is a skilled wordsmith and attorney who dodged a political bullet along with a great deal of potential criticism for partisanship. Sometimes discretion is the better part of valor, as the saying goes.
Roberts may have observed the mess FBI Director James Comey, another nonpartisan appointee, got himself into by speaking publicly about ongoing FBI investigations during the 2016 presidential election.
We can learn some practical lessons from Chief Justice Roberts’ sagacity. Being able to avoid getting caught in politically heated and divisive arguments is a viable alternative to direct confrontation. All of us should consider Roberts’ tact when confronting those who differ with us politically.
That’s the lesson that those on both the extreme right and left should take to heart. The Solomonic proverb that comes to mind is, “Even fools are thought wise if they keep silent, and discerning if they keep their tongues.” Chief Justice Roberts is no one’s fool, and the nation benefits because of it.
Rich Elfers is a columnist with the Courier-Herald in Enumclaw, a former Enumclaw City Council member and a Green River College professor.