Justice Roberts’s fingerprints seen on travel ban decision

Justice Roberts’s fingerprints seen on travel ban decision
© Greg Nash

The unusual compromise at the center of the Supreme Court’s big decision this week to reinstate part of President TrumpDonald John TrumpRepublicans hold on to Arizona House seat Dems win majority in New York Senate, but won't control it Mulvaney to bankers: Campaign donations will help limit consumer bureau's power MORE’s travel ban was a hallmark of how the court appears to operate under Chief Justice John Roberts.

The court said the government could ban entry of nationals from six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – but carved out an exemption for individuals who have a “bona fide relationship” to a person or entity in the U.S.

It’s not the first time the court under Roberts’ leadership has tried to find common ground that’s novel and unexpected, a telltale sign to court-watchers that the chief justice played a significant role in the decision.

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“It had a split the baby feel to it and when the court has wanted to project some amount of unity or consensus it’s done so by ruling in these small ball ways,” said Sam Erman, an associate professor of law at the University of Southern California Gould School of Law, who clerked for Justice John Paul Stevens and then Justice Anthony Kennedy.

“Roberts has said he wants more consensus on the court. We know he’s trying to move the court in that direction.”

The decision was reminiscent of the court’s 5-4 ruling in 2012 that upheld President Obama’s healthcare law. Roberts cast the deciding vote.

In that decision, Roberts viewed the mandate that people buy health insurance or face a penalty not as an order, but as a tax.

Though the federal government does not have the power to order people to buy health insurance, Roberts said, “the federal government does have the power to impose a tax on those without health insurance.”

The decision was hailed as a major victory for Democrats but Republicans didn’t walk away empty handed.

The court significantly limited the law’s Medicaid expansion. The government, Roberts said could not threaten to pull states’ existing Medicaid funding if they declined to comply with the expansion. 

Roberts has been leading the court for more than a decade and court watchers say he has spent much of his tenure trying to keep the court above the partisan fray. 

Herman Schwartz, a professor of law at American University Washington College of Law, said the court’s most creative rulings come in cases that are centered on the most controversial issues.

“Roberts is the chief justice and that means he has a special concern about the court not looking wildly partisan or even partisan period that’s one consideration,” he said.

“Secondly, a lot has to do with the public importance of the issue. He’s no fool.  He knows some things draw more attention than others.”

Last year the court told the Obama administration and religious groups in a unanimous ruling to work out a compromise over the birth control mandate in the Affordable Care Act.

The justices said the parties “should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered ‘receive full and equal health coverage,'” that includes coverage for contraceptives.

Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, who lectures on half of the Federalist Society, claims the court was forced to find a compromise in that case, given that it was shorthanded with only eight justices following the death of the late Justice Antonin Scalia, 

He said a 4-4 ruling would have made the mandate constitutional in some parts of the country and unconstitutional in others.

Like all chief justices, Schwartz said Roberts is already concerned about the legacy he will leave behind. While the Roberts court is pushing the country well to the right, Schwartz said he has at times worked as a stop on that momentum.

If the court’s most conservative members – Justice Clarence Thomas, Samuel Alito and Neil Gorsuch – had their way, Trump’s full travel ban would have been reinstated.

Not everyone is sure that Roberts was the main force behind the travel ban decision.

Erwin Chemerinsky, dean of the School of Law at the University of California Irvine School of Law, said there’s no way to know if Roberts drafted that decision or not.

“I think over the last 16 months, as the court had only eight justices, one thing they did was try to find compromise by ruling on narrow grounds, leaving larger questions unanswered,” he said.

“To what extent Roberts is the architect, we would just be guessing.”