Weekend Open Thread: The Switch in Time That Saved DACA (for now)

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Robertses, clockwise from left: Justice Owen, Dread Pirate, Chief Justice John, Red-Dress Julia

The headline of this morning was that the Supreme Court ruled that President Trump could not just drop DACA like an emotionally abused wife after so many people had relied on it to shape their lives.

Great news — although the opinion does suggest that some milder and more gradual exit strategy from DACA may be possible.  (Reminder: wear a mask and maintain safe social distancing as you celebrate!)

You can read about the DACA decision and its implications in many other places, though, and other than a local angle (which we’d love to have! Write for us!) we won’t likely have much to improve on that widespread reporting.  But there is something else to note about the legal aspects of this:

Something has gotten into Chief Justice Roberts!

And, like the Dread Pirate Roberts of The Princess Bride, it seems to be a role that different Justices named Roberts slip into at various times for the greater good.

John Roberts’s predecessor in this respect was Justice Owen Roberts, who served on the Court during FDR’s Administration and was part of a five-justice bloc who continually declared New Deal programs unconstitutional.  That was when FDR’s brain trust came up with the idea of “Court packing” — adding a new Justice onto the Supreme Court for every Justice who had reached the age of 70.  (The number of justices on the Court is set by statute, not by the Constitution, and it has reached as many as 10 in the past.)  While I’ve seen scholarship disputing that this threat of Court packing is what induced Owen Roberts to finally switch and uphold the constitutionality of FDR’s programs — it was famously dubbed “The Switch in Time That Saved Nine,” which is funnier if you know the sewing based aphorism “a stitch in time saves nine,” and I don’t know how many do except for me and the Winships — most court observers still seem to accept that story as substantially true.

Well: with Mitch O’Connell having kept an Obama-appointed potential Justice off of the Court for more than a year, and with Donald Trump having gotten to make that appointment and one more, the hardball proposition of “court packing” as a countermeasure has returned — most notably from Sen. Elizabeth Warren — and lo and behold a new Dread Justice Roberts has arrived to spread terror on the high seas of … of … uh, let’s just put that metaphor aside and sail on.

As with Owen Roberts, the suddenness of John Roberts’s switching can be easily overstated.  He has taken liberal positions in the past, notably on Obamacare, where a conservative decision would lead to social upheaval (such as striking down Obamacare).  That decision closely resembles this one in that both turn on “settled expectations” — a principle that in my experience looms largest in the area of making retroactive changes to the law.  (For a really good time , especially if you’re an opponent of government high-handedness, take a look at this Ninth Circuit opinion — which I am “intimately familiar,” as the saying goes, from my days as a judicial clerk — which among other things addresses questions of settled expectations in changing laws and regulations.)

People had ordered their lives over the continuing existence of Obamacare, at least until proper procedures were followed in repealing it, and that weighed against declaring it unconstitutional.

People had ordered their lives over the continuing existence of DACA, at least until proper procedures were followed in repealing it, and that weighed against declaring it unconstitutional as well.

John Roberts has been consistent, at least in these two significant instances, in not having the Court suddenly upset the apple cart without a really compelling reason.  (If Roberts goes ahead and strikes down Obamacare after all later this month, I will revise this analysis accordingly…..)

And yet, while this analysis provides a rationale for Roberts’s position which requires no other motive, it is hard to resist the temptation to speculate that, as the saying goes, “the Supreme Court reads the newspapers” (or at least streams the news), which might not be unrelated to current events.

The question is: not unrelated how?

It’s probable that Roberts, like others who don’t have to face a Republican primary electorate, recognizes that Trump is loco en la cabeza and getting ever more dangerously erratic.  If so, there is an arguable imperative to pull the brakes on his wilder actions — at least until his reign is either ratified or retracted by the upcoming election.  That’s really enough to justify this decision all by itself.

But some people will no doubt speculate that Roberts has some more actively political calculus in mind.  The problem with that notion is: this action cuts both ways.

One the one hand, it is a rebuke of Trump acting wildly and irresponsibly.  Bad for Trump, right?

On the other hand, it offers reassurance — a promise that may turn out to be empty, especially if Trump is reelected — that the Supreme Court will reign in Trump’s worst excesses, meaning that people don’t need to fear voting for him.  (I’m pretty confident that it won’t, if Trump is elected in what appears to be a fair election, but that doesn’t mean that Roberts can’t imply the promise!)

And that is good for Trump!

In any event, Roberts can’t depend on being the swing vote on the Court for long.  Not only do we have the prospect that Clarence Thomas will resign if Trump loses the election (or if he wins but Democrats gain control over the Senate), extending the radically conservative hold on his seat for another 40 years or so, but the Democratic majority relies upon Ruth Bader Ginsburg and other Democrats on the court staying on the court.  Without them, the swing vote becomes — I don’t know, Gorsuch?

So it’s a good day for DACA beneficiaries and for good government as well.  But is it a lasting and decisive victory?  No.  As with so much of 2020, the victories we celebrate are generally based on our having averted an immediate calamity while the arc of horror continues to bend towards disaster.

This is indeed your Weekend Open Thread.  Talk about the above, or the substance of this win for Dreamers and those who love (or even just like) them, or whatever else you’d like, within reasonable bounds of decency and discretion.



About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Deposed as Northern Vice Chair of DPOC in April 2014 (in violation of Roberts Rules) when his anti-corruption and pro-consumer work in Anaheim infuriated the Building Trades and Teamsters in spring 2014, who then worked with the lawless and power-mad DPOC Chair to eliminate his internal oversight. Expelled from DPOC in October 2018 (in violation of Roberts Rules) for having endorsed Spitzer over Rackauckas -- which needed to be done. None of his pre-putsch writings ever spoke for the Democratic Party at the local, county, state, national, or galactic level, nor do they now. One of his daughters co-owns a business offering campaign treasurer services to Democratic candidates and the odd independent. He is very proud of her. He doesn't directly profit from her work and it doesn't affect his coverage. (He does not always favor her clients, though she might hesitate to take one that he truly hated.) He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)