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Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
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Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
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Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
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Deborah Pearlstein dpearlst at yu.edu
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Alice Ristroph alice.ristroph at shu.edu
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David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Ideology, Not Republican Politics, Makes John Roberts Run – Again
No less than the Trump administration, Supreme Court pundits felt blind-sided by Chief Justice John Roberts’ rejection, in Department of Commerce v. New York, of the Commerce Department’s rationale for adding a citizenship question to the 2020 census.They attributed the Chief’s stunner to political calculation, “echo[ing] his surprise affirmation of the Affordable Care Act in 2012,” which in their view had similarly been designed to shield the Court from perceptions of partisanship and to “lower political tensions.” On the left, some saw a more Machiavellian Roberts maneuver, temporarily pausing his Court’s relentless rightward march, merely to “modulat[e] public uproar,” while teaching his White House and congressional allies that, while he is “on their side,” they must “lie better next time” than Commerce Secretary Wilbur Ross’ ham-handed ploy to weaponize the census.
To be sure, the nation’s polarized state, and in particular the current president’s whack-a-mole penchant for defying established legal norms, challenge the Court’s independent stature in circumstances that require deft navigation by its helmsman – necessarily involving artful political judgment.But to dismiss Roberts’ census decision as simply or even primarily political, is wrong, misleading, and even dangerous – as was the identical, widespread misread of his NFIB v. Sebelius decision to uphold the Affordable Care Act individual mandate as a tax, a point I elaborated in a recent Balkinization post. It is not only more straightforward, but sounder to forgo such unmoored psychological speculation, and, instead, focus on what he actually decided, and, especially, what he wrote.In that light, DOC v. New York reaffirms, in the mode of NFIB and its too-little-noticed kin, King v. Burwell, that, on those (to date, rare) occasions when conservative, i.e., Republican, political priorities clash with Roberts’ ideological or jurisprudential druthers, he goes with the latter.
In NFIB the ideological itch he scratched was legal and policy favor for incentive-driven safety net programs, salted with another traditional oldie but no longer, on the right, a universal goody – judicial restraint and minimization of interference with congressional enactments.King re-emphasized both of those ideological Roberts priorities, and also broke new ground on a broader Roberts interest – redefining the judiciary’s mandate for disciplining the “modern administrative state.” Roberts’ emerging vision appears more engaged than prevalent post-New Deal doctrinal precepts, but also more nuanced than the overtly activist model of the pre-New Deal “Lochner Era” Court, favored by increasing numbers of libertarians and conservatives.It is this long-term, ideological pursuit – not impromptu political calculation – which drove the decision to sideline Trump’s census machinations.The breadth of this enterprise, and Roberts’ commitment to it, is evident in several decisions in addition to DOC v. New York, as I’ll explain briefly below.
To begin with, it seems blinkered to dismiss his census decision as merely an adroit maneuver to spur the administration to put a prettier face on its political agenda.This is true, not simply because, the president’s base-pamperingfulminations notwithstanding, DOC v. New York has effectively killed Trump’s citizenship scheme. As his own attorney general advised him, the practical and legal implications of Roberts’ opinion all but rule out exhumation of the citizenship question in time for the 2020 census, if at all.
More broadly, Roberts’ opinion constitutes a truly stinging censure. Even in these partisan times, one would think there will be reverberations from having a respected conservative chief justice call out a cabinet official, acting at the behest of the president who appointed him, for lying to the public and the courts, including the Supreme Court, “from the time [Ross] entered office,” acting in “bad faith,” spinning a story that appears “contrived,” “incongruent” with what at least two departments, Commerce and Justice, with White House complicity, actually did, a “disconnect between the decision made and the explanation given.”
Most important, the words that Roberts chose can be expected (and must have been expected by him) to frame and establish ground rules for federal judges’ and justices’ approaches to the other, proliferating, legal challenges to alleged Trump overreach. Many of these, like the census case, turn on whether and when courts should credit administration rationales at odds with their expressed motivations. In that regard, the line from Roberts’ census decision likely to be most often brandished by challengers could be this: “Our review is deferential, but we are [quoting Judge Henry Friendly, for whom he clerked], ‘not required to exhibit a naivete from which ordinary citizens are free.’”Also handy for Trump challengers could be Roberts’ following riff:
The reasoned explanation requirement of administrative law . . . is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.Accepting contrived reasons would defeat the purpose of the enterprise.”(Emphasis added.)
DOC v. New York would seem to establish a point on a spectrum of deference to agencies’ stated rationales, opposite that of Hawaii v. Trump, the 2018 travel ban case.There Roberts, for a 5-4 majority, held that the Court could not overturn a facially valid Department of Homeland Security proclamation, on the basis of overtly anti-Muslim statements by Trump, during his 2016 campaign and while in office. While seeming to acknowledge Hawaii’s claim that “this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition,” Roberts countered that the Court’s role is not “to denounce the statements . . . “[W]e must consider not only the statements of a particular President, but also the authority of the Presidency itself.”
In his year-later census decision, Roberts reiterated a similarly deferential perspective, in holding – along with the rest of the conservative bloc – that inserting the citizenship question was within the Department’s statutory authority, and that Secretary Ross’ rejection of contrary recommendations by the Census Bureau was not arbitrary and capricious under the Administrative Procedure Act. But, unlike his conservative colleagues, Roberts set an upper boundary on accepting an agency’s stated rationale – when the rationale appears “contrived.” Further, he approved going outside the agency’s formal administrative record upon a prima facie showing that the stated rationale was made in “bad faith.”
In other recent cases, Roberts has elaborated additional features of a revised jurisprudence of the respective roles of courts and agencies.In 2010, in circumscribing Congress’ constitutional authority to limit presidential power to remove agency heads without cause, he first broadcast his concern about “the administrative state, which, he lamented, “wields vast power and touches almost every aspect of daily life.”In 2013, in an elaborate dissent in Arlington v. FCC, hesignaled his intent to climb aboard the bandwagon of conservatives focused on bolstering judicial checks on the “hundreds of federal agencies poking into every nook and cranny of daily life.”His specific prescription was that Chevron v. NRDC, which held in 1984 that courts must defer to agency interpretations of ambiguous laws they administer, should be modified or clarified to reserve to reviewing courts exclusive responsibility, before they decide that Chevron applies, to determine whether Congress actually “granted the agency interpretive authority over the [particular] statutory ambiguity at issue.”
In 2015, advancing further his interest in paring back Chevron, in King v. Burwell, Roberts, for a 6-3 majority, ruled that, in cases where the issue is “a question of deep economic and political significance that is central to [the pertinent] statutory scheme,” courts should not follow Chevron at all, and must themselves decide what the law in question means, whether the law is “clear” or “ambiguous.”Thus, shelving Chevron deference altogether in cases that really matter is another component of Roberts’ emerging approach to managing the administrative state.
Probably, the Chief Justice’s most significant sally into the thicket of judicial review of administrative action came during the present term, on the day before the census decision was announced. The case, Kisor v. Wilkie, invited the Court to overrule a longstanding rule known as Auer, shorthand for the decision in which the rule was established, that generally requires judicial deference to agency interpretations of their own regulations.But it didn’t happen. Four of the Court’s conservatives voted, as expected, to overrule Auer, joining a lengthy opinion by Justice Gorsuch. Also, as expected, the four progressive justices voted to retain Auer deference, behind a similarly substantial opinion by Justice Kagan. But the Chief Justice struck out on his own, and, as in NFIB and DOC v. New York, deployed an idiosyncratic approach that decided the case, and resolved the contentious issue of principle at stake, on terms of his design.
Roberts’ tack was to join a section of Justice Kagan’s opinion, thereby turning that section into the opinion of the Court.As he put it in a brief separate concurrence, that section “catalogs the prerequisites for, and limitations on Auer deference.”As both camps, on and off the Court, recognized, the Kagan-Roberts catalog materially stiffened the Auer protocol, explicitly disowning “mixed messages” in certain prior Supreme Court decisions that had loosely interpreted Auer. As summarized by Roberts:
“The underlying regulation must be genuinely ambiguous; the agency’s interpretation must be reasonable and must reflect its authoritative, experience-base, and fair and considered judgment; and the agency must take account of reliance interests and avid unfair surprise.”
This new litany of boxes judges must check, before deferring to agency interpretations of their regulations, is sufficiently rigorous that it enabled Roberts to “suggest” that, in practice, the majority’s yes-but retention of Auer could prove little different from the no-but approach of Justice Gorsuch’s dissent.Gorsuch’s opinion qualified its formal burial of Auer “deference,” by detailing circumstances in which judges should be “persuaded” to concur in agency interpretations. Indeed, Justice Kavanaugh wrote his own short concurring opinion, in which Alito joined, to express their agreement that the difference between the majority and the minority could prove more a matter of spin than substance, “lead[ing] in most cases to the same general destination.”
I summarize Roberts’ opinions in the above cases, not to show-case, endorse, or critique them, but to put DOC v. New York in proper perspective. That perspective shows his actions and words in the census case fitting into a larger enterprise, to which he keeps returning, and for which he assiduously fashions general principles and implementing criteria and procedures, that courts, agencies, and litigants will presumably feel obliged to heed.Repeatedly, Roberts shows his zest for marching to his own drum: carving out singular approaches to resolving ideologically polarized issues in both the individual mandate and Medicaid expansion sides of NFIB, and in Kisor and DOC v. New York; in King v. Burwell, opportunistically denting Chevron, enhancing the Court’s power and his power on the Court,and rolling out an original approach to statutory interpretation; and in King and DOC v. New York, striking back at erstwhile political allies, for maneuvers so overtly manipulative that acquiescence would erode the Court’s stature, by making the justices “exhibit a naivete from which ordinary citizens are free,’” in order to promote transparently political agendas.
To anticipate or influence how the Chief Justice will handle future challenges to White House and executive decisions, the place to start is these rulings, and perhaps others, not to imagine him raising a finger to test the direction and velocity of the political winds.
Simon Lazarus is a lawyer and contributor to legal and opinion blogs and journals. He served as Associate Director of President Jimmy Carter’s White House Domestic Policy Staff, and since then with private and public interest law firms in Washington, DC. His email address is Simonlaz@comcast.net.