And can the Trump administration do it now? Theoretically yes, under still another acting Homeland Security secretary, but any newly justified rescission announcement would find the administration back in court within hours, the clock ticking all the while toward Election Day. Although the chief justice nominally left it up to the administration to weigh the reliance interests against its policy goal, his exposition of the strength of those interests sets a very high bar for this or any subsequent administration to clear.
Where was the other Chief Justice Roberts this week, the one of the disastrous Shelby County v. Holder voting rights decision, of the travel ban decision? Was the Chief Justice Roberts who silently joined Justice Neil Gorsuch’s majority opinion bringing L.G.B.T.Q. people within the protection of federal anti-discrimination law the same chief justice who wrote a snarky dissenting opinion five years ago when the court upheld the constitutional right to same-sex marriage?
Contemplating this head-snapping week at the Supreme Court, I’m reminded of the amazing 2002-2003 term, when the court under another conservative chief justice, William Rehnquist, seemed to pull its robust conservatism up short. In the space of a few weeks in the spring of 2003, the court upheld affirmative action in higher education; granted constitutional protection to gay men and lesbians for their private sexual lives; and upheld the application of the family-care provision of the Family and Medical Leave Act to state employees.
Chief Justice Rehnquist himself was in dissent in the first two of those cases, but he surprised nearly everyone by writing the majority opinion in the third, a case that may sound obscure now but that effectively spelled an end to the federalism revolution on which, under the chief justice’s leadership, the court had been embarked.
What could have accounted for that surprising turn of events at the dawn of the new century? Wrestling with that question, I eventually concluded that the court was realigning itself, as it has done historically, with its own sense of what the public wanted and expected from it.
“No great Supreme Court case is only a question of law,” I wrote then. “It is always also an episode in the ongoing dialogue by which the court engages with the society in which it operates and in which the justices live.”
Just so with this week’s cases. Monday’s ruling on the right of gay and transgender people to be free of discrimination in the workplace showed a court that by a refreshing vote of 6 to 3 decided not to stand in the path of a tide of social change. The DACA decision contained a message threaded through its dry language of administrative procedure — a warning to the Trump administration not to assume that it gets a free pass, not to take the Supreme Court for granted.