'Cowardice And Incoherence' Will Be The Roberts Court Legacy

thefederalist.com

In his brilliant dissenting opinion eviscerating the majority’s legal gymnastics on birthplace citizenship, Justice Samuel  Alito warned the court not to “adopt an erroneous interpretation of the Fourteenth Amendment simply out of fear of the consequences of ‘rocking the boat’ or as a reaction to current immigration policy.”

But fear and politics, it seems, drove the specious legal reasoning of the  “conservatives” who joined the court’s three liberals in killing President Donald Trump’s executive order ending squatter rights citizenship. A reluctance to “rock the boat” of more than a century of bad law permeates the thinking of Chief Justice John Roberts, author of the 5-4 ruling declaring unconstitutional the campaign promise Trump kept on the first day of his second term in office. 

Such cowardice in guarding the Constitution has too often marked Roberts’ tenure as the chief of the nation’s high court. From his similar constitutional contortionist act in 2020 Department of Homeland Security v. Regents of the University of California to his ridiculous reinvention of the established understanding of a “tax” in playing savior to Obamacare, Roberts has sacrificed judicial courage at the twin altars of comity and continuity. 

‘The Value of American Citizenship’

President George W. Bush’s nominee for chief justice has described himself — and all judges — as “umpires.” They don’t make the rules, he said. They apply them. 

“They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire,” he quipped. 

His latest opinion, Trump v. Barbara, reads more like an umpire who has ignored the foul lines. 

Donald J. Trump was born to rock the boat. The open border left and the Chamber of Commerce, cheap labor crowd railed against the president’s executive order aimed at “Protecting The Meaning And Value of American Citizenship.” The order asserts what many constitutional law experts — including Justice Alito — understand the 14th Amendment to mean.

“[T]he privilege of United States citizenship does not automatically extend to persons born in the United States,” the president’s directive states. That includes those availing themselves of the lucrative and growing industry of “birth tourism.”

Trump was clear: the U.S. government would no longer issue or accept documents recognizing U.S. citizenship of anchor babies, estimated to make up about 7 percent of the nation’s births. 

Previous presidents wouldn’t go there. Trump, of course, is a different president. 

The usual leftist suspects immediately sued him. They are, of course, gloating today. Roberts, Justice Amy Coney Barrett and, to a degree, Justice Brett Kavanaugh, gave them reason to rejoice. Kavanaugh’s beef was that birthplace citizenship policy is the domain of Congress, not the president. 

‘The Right to Have Rights’

Roberts and Barrett agreed with the plaintiffs that children born to parents “unlawfully or temporarily present in the United States” “satisfy both elements” of the 14th Amendment’s citizenship clause: “they are ‘born . . . in the United States’ and ‘subject to the jurisdiction thereof.’” 

Roberts relies on the trite “nation of immigrants” mantra at the expense of first principles, specifically that we are a nation of laws. And those founding laws mean little if they are bent to the whims of political expedience and political correctness. 

The opinion effectively legitimizes DEI-hire Justice Ketanji Brown Jackson’s fatuous idea during oral arguments that if she stole a wallet while on vacation in Japan, she would be bound by her “allegiance” to the country’s criminal laws and the consequences therein.

”So there’s this relationship, even though I’m just a temporary traveler, I’m just on vacation in Japan, I’m still locally owing allegiance in that sense,” Jackson said. 

In a very real sense that makes no sense. Visitors are bound by the laws of the countries in which they travel. Kind of like millions of “undocumented” migrants are bound — or should be bound — by U.S. immigration law. They don’t owe an allegiance to the country that should be enforcing said laws. And therein lies a huge problem with birthplace citizenship. 

But Roberts is riding with a long-standing bastardization of the 14th Amendment’s intent, which was written to grant citizenship to freed slaves and their children, not the children of millions of illegal immigrants looking for a pass to stay. 

“Citizenship, then and now, was the right to have rights — to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ … We keep that promise today,” Roberts wrote. 

That reads like the thinking of jurist who would rather win friends and influence people than right a popular but deeply flawed interpretation of the constitution. 

The “institutionalist” has a reputation and a record on that front. 

‘Middle Way’ Roberts 

In 2012’s baffling  NFIB v. Sebelius decision on Obamacare, Roberts was the deciding vote in abandoning the founding principles of tying representation to taxation and the origination clause. He justified that abandonment via a twisted bridge of constitutional interpretation, insisting “it is reasonable to construe what Congress has done [creating an individual mandate] as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.”

While Roberts’ defended his extra-constitutional ruling on multiple occasions, he didn’t always feel that way. In fact he originally sided with his fellow conservatives in the minority “on the grounds that it went beyond Congress’s power to regulate interstate commerce,” according to The Chief, a book written by longtime SCOTUS reporter Joan Biskupic. No originalist, Roberts was originally right. 

He caved to public pressure, fearing striking down the “Affordable Care Act” would create too many waves.  

“After trying unsuccessfully to find a middle way with [Justice Anthony] Kennedy, who was ‘unusually firm’ and even ‘put off’ by the courtship, Roberts turned to the Court’s two moderate liberals, Stephen Breyer and Elena Kagan,” a review of the book published in The Atlantic asserts. “The threesome negotiated a compromise decision that upheld the ACA’s individual mandate under Congress’s taxing power, while striking down the Medicaid expansion.”

Roberts withstood the intense pressure to change his mind in the 2022 Dobbs v. Jackson Women’s Health Organization decision that overturned nearly 50 years of bad abortion law under Roe v. Wade. But court watchers say the violence and the chaos ginned up by the left — including threats on the conservative justices’ lives — after a draft ruling was leaked left an impression on the chief justice’s mind. 

‘Cowardice and Incoherence’ 

Roiling the waters comes with too steep a price. Roberts doesn’t like messy, as he made clear in his year-end message to the judiciary in late December. 

“Chief Justice John Roberts scrupulously avoided touching on contentious issues facing judges at a time of widespread discord within the federal judiciary,” NBC News reported.

Kumbaya. 

He’s done little to rein in activist judges, particularly in the realm of nationwide injunctions. Doing so might upset activist judges. Roberts has pushed back on calls for impeaching such jurists, however.  

The chief justice’s opinion on birthplace citizenship further cements his legacy of his preference for comity over conflict, political consideration over principle, to the peril of the 250 year-old republic. 

“The legacy of the John Roberts court is cowardice and incoherence,” The Federalist’s CEO and co-founder Sean Davis wrote Tuesday on X. 

Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.