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John Roberts’s Past and Immigration’s Future

April 7, 2016

When the Supreme Court hears oral argument in United States v. Texas, the challenge to President Obama’s executive action on immigration, later this month, one of the big issues the Court will be considering is whether the federal courts should be considering the challenge at all. If Chief Justice Roberts’s past opinions are any guide, his view on that question should be clear: in his first decade on the high court, Roberts has repeatedly made clear that he thinks the role of the courts should be limited, and he has consistently voted to limit parties’ ability to sue. There’s good reason to think Roberts won’t deviate from those views now. As much as Roberts has made clear that he believes in limited access to the courts, he has also made clear that he believes the courts are not—and should not be perceived to be—partisan institutions. If he were to change his views on standing in this case, it would do exactly what he laments: make it seem like the Justices’ votes are driven by politics, not the law.

Throughout his tenure on the Court, Roberts has repeatedly pushed back against the perceived politicization of the Court. Early in his tenure as Chief Justice, Roberts talked about the importance of keeping a “partisan divide out of the judiciary.” More recently and on multiple occasions, he has expressed concern that the Court not be seen as a political body and that the Justices not be viewed as simply politicians in robes. Indeed, as I have written elsewhere, it seems likely that Roberts’s very real concerns about the institutional legitimacy of the Court and his reputation as its Chief Justice are what have sometimes led this very conservative Justice to put law over ideology in key cases, such as the challenges to the Affordable Care Act. These concerns are particularly salient now as a huge political fight over the vacancy on the Supreme Court is being waged on Capitol Hill and the Chief Justice himself has been the subject of Orwellian attacks by Senator Chuck Grassley, who has accused Roberts of being responsible for the increasing perception that the Court is a political body.

There can be little doubt then that these concerns will be on Roberts’s mind as he considers how to vote in the challenge to President Obama’s executive action on immigration and, in particular, how to vote on the Administration’s argument that the action’s challengers lack standing to bring this claim in court. Standing is a constitutional doctrine that governs whether a party can sue at all; if parties can’t satisfy the requirements of standing, the court has no authority to consider the merits of their legal challenge and must dismiss the case for that reason alone. As David Leopold recently argued, “Chief Justice Roberts has a well-deserved reputation as a tough customer when it comes to standing.” For example, Leopold points to Summers v. Earth Island Institute, a 5-4 decision in which Chief Justice Roberts voted with the Court’s conservative majority to deny standing; the proper role of the Court is to redress injury, not “to review and revise legislative and executive action” absent such injury, Justice Scalia wrote in that case in an opinion joined by Roberts.

Roberts hasn’t always been in the Court’s majority in standing cases, but he’s been consistent in his views that access to the courts should be limited. The challengers of President Obama’s executive action on immigration rely heavily on one important case in which the Court, again 5-4, did recognize standing. In that case, Massachusetts v. EPA, the Court held that Massachusetts had standing to challenge EPA’s failure to regulate greenhouse gas emissions under the Clean Air Act. The Administration and others argue that the challengers’ reliance on Massachusetts is misplaced, but when it comes to Roberts’s views on standing, what’s key is that Roberts was in dissent in that case. Roberts wrote in Massachusetts, “[t]he constitutional role of the courts . . . is to decide concrete cases—not to serve as a convenient forum for policy debates,” and “the Court’s self-professed relaxation of [standing requirements] has caused us to transgress ‘the proper—and properly limited—role of the courts in a democratic society.’”

According to Leopold, Roberts’s “well settled respect for the strict rules of standing” would be at odds with finding standing in the immigration case. Indeed, if Roberts were to conclude that these plaintiffs do have standing and then vote to invalidate the President’s executive action, it might look like Roberts’s views on standing were being driven not by his view of the law, but by the politics of the case: when more liberal state officials want to get into court to combat climate change, he’s got a strict closed door policy, but when conservative state officials want to get into court to challenge President Obama’s immigration actions, he throws the courthouse doors wide open. And if there’s one thing Roberts wouldn’t want, it’s that. So even though there are very good reasons to think that Roberts should rule for the Administration on the question of whether the executive action is lawful, if his past opinions are any guide, he might not reach that question at all.

This piece is cross-posted to Huffington Post.

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