ByContributing Opinion Writer
Suppose there had been a leak from the Supreme Court early Thursday morning: The court was about to issue its long-awaited decision in the DACA case on the fate of nearly 700,000 young immigrants known as Dreamers; the vote was 5 to 4; and the majority opinion was by Chief Justice John Roberts. But the leaker didn’t know, or wouldn’t say, which way the case came out.
Ladies and gentlemen, place your bets.
Among the Dreamers and their supporters, hearts would have been in their throats. This was the chief justice, after all, who two years ago wrote the opinion upholding President Trump’s Muslim travel ban, and who five years before that wrote the opinion dismantling the Voting Rights Act. The vote in both was 5 to 4. Why wouldn’t the conservative chief justice defer to the president’s decision to end a program, Deferred Action for Childhood Arrivals, that his predecessor had instituted by executive action without even seeking Congress’s approval?
But the president’s allies would have had ample reason to be anxious. Wasn’t this the chief justice who just a year ago wrote the majority opinion that by a vote of 5 to 4 blocked the president’s plan to add a citizenship question to the 2020 census? The proposal failed the essential requirement of administrative law for “reasoned decision making,” Chief Justice Roberts wrote in that case. He dismissed the administration’s proffered good-government rationale as pretextual; or, as the dictionary puts it, “dubious or spurious.”
Now, of course, we know that it was the Chief Justice Roberts of the census decision, which an enraged President Trump came within inches of defying, who arrived on the scene in time to save the Dreamers. His opinion assured readers that in holding that the administration’s effort to undo DACA was invalid, the court was not endorsing the program. That is conventional administrative law talk — and the case, as the chief justice framed it, was a conventional one about administrative procedure.