Focus is on chief justice as Supreme Court hears immigration case

John Roberts and other Supreme Court justices will hear the case today.
John Roberts and other Supreme Court justices will hear the case today.
Published April 18, 2016

WASHINGTON — Chief Justice John Roberts twice voted to save President Barack Obama's health care law, infuriating his usual allies on the right. Now, conservatives are nervous that the chief justice will disappoint them again in a challenge to another major Obama initiative, this one on immigration.

The case, to be argued today at the Supreme Court, presents fundamental questions about executive power against the backdrop of a wrenching national debate over Obama's plan to spare millions of immigrants from deportation. But Roberts' record suggests that he may avoid taking a position on such a divisive and partisan issue, focusing instead on the more technical question of whether the states challenging the Obama administration's immigration plan have suffered the sort of direct and concrete injury that gives them standing to sue.

That jurisprudential off-ramp would avoid a deadlock or a grand pronouncement from a short-handed court on a politically charged issue in a presidential election year. And that may prove attractive to a chief justice who has said he does not want the Supreme Court to be viewed as a forum where "partisan matters would be worked out."

A narrow ruling would in some ways echo Roberts' 2012 opinion sustaining the central feature of the health care law on grounds so carefully calibrated that no other justice joined all of his opinion. And it would be consistent with his stated preference for achieving consensus by defining the legal question at issue in a case as narrowly as possible.

Roberts, 61, is a patient man and a canny strategist. In 2007, three years before the Citizens United decision, Justice Antonin Scalia, who died in February, urged him to move faster in deregulating campaign finance law.

In 2009, Roberts persuaded seven of his colleagues to duck a challenge to the Voting Rights Act on technical grounds and then used language from that opinion in 2013 to justify striking down the heart of the law in Shelby County vs. Holder.

David Strauss, a law professor at the University of Chicago, said an incremental step will appeal to Roberts all the more in the current political climate.

"The chief justice, who has spoken recently about how the confirmation process might affect the court's stature, may be especially troubled by a 4-4 split in this case," Strauss said.

Obama's plan would allow more than 4 million unauthorized immigrants who are parents of citizens or lawful permanent residents to apply for a program shielding them from deportation and allowing them to work legally. In the short term, a ruling to dismiss the case on standing grounds would at least temporarily save the plan.

A tie vote, on the other hand, would leave in place an injunction blocking the plan and probably deny Obama any chance of resurrecting it.

The case, United States vs. Texas, was brought by Texas and 25 other states, which say the plan went beyond what Congress had authorized. Lower courts sided with Texas.