Chief Justice John Roberts joined the court’s three liberal members to leave intact a Pennsylvania Supreme Court decision extending by three days the time for receipt of absentee ballots and allowing those with illegible postmarks to be counted if received by the deadline.

~Jess Bravin & Brent Kendall/Wall Street Journal

There being only eight justices following the death of Ruth Bader Ginsberg, a 4-4 decision requires the Supreme Court leave any lower court decision under appeal intact.  As is usually the case in such circumstance, neither side issues an opinion explaining the basis for their individual votes.

And right on cue, Republicans attacked the Chief Justice for siding with the three justices appointed by Democratic presidents.  If you had any doubt why Donald Trump and Mitch McConnell want nominee Amy Coney Barrett confirmed before the election, the answer is now obvious.  If already seated, this third Trump appointee would most likely have provided the pivotal vote to reverse the lower court decision potentially depriving tens of thousands of voters a voice in the presidential election.  And in the event of a close Biden victory in the Keystone State, I have no doubt Judge Barrett might still get her opportunity to weigh in on the issue.

How do you then explain Roberts’ joining with the three remaining Democratic appointees to create the deadlock?  The answer may lie in the less publicized news on Monday when the Court announced it would hear two cases involving challenges to the Trump administration’s efforts to curb immigration at the southern border.  The first challenge involves redirection without Congressional approval of $2.5 billion for defense projects  to build Trump’s border wall.  The second relates to the so-called “Remain in Mexico” policy, by which Spanish-speaking migrants seeking asylum in the U.S. must stay in Mexico while their requests are processed.  In both cases, the 9th U.S. Circuit Court of Appeals ruled in favor of the plaintiffs, i.e. against the Trump administration.

If I had to guess Roberts’ motivation, it is a combination of two things.  First, it is an admission he believes Joe Biden will become president on January 20th.  Second, regardless of his ideology, Roberts knows his legacy depends on his ability to eschew being viewed as a hypocritical partisan.  Therefore, in the waning hours of a Trump administration, it is in the interest of a right-leaning court to to tamp down efforts by Trump to expand executive authority.  Then, if the court is asked to consider any similar efforts by the Biden administration, Roberts can reference these pending cases as evidence of consistent rationale.

For example, suppose Biden declares a national emergency in response to future spikes in COVID-19 cases and hospitalizations.  And one element of the declaration involves the re-appropriation of farm subsidies to fund urban food banks.  Who could argue with the Chief Justice this is no different from shifting dollars to build a wall.  It would be similar violation of Congress’ power of the purse authority in Article I of the Constitution?  Or in a post-Roe v. Wade world, policies affecting reproductive rights will revert to the states.  Roberts can point to his vote on the Pennsylvania voting deadline to proclaim, “As I have consistently done from this bench, render unto states what belongs to the states under the 10th Amendment.”

From a Constitutional perspective, that might not be a bad thing.  Americans would be well-served if both the judicial and legislative branches started to push back against the presidential power grab which has been the norm for too long when it comes to separation of powers as well as federal checks and balances.  The only remaining question would then be, “Can Chief Justice Roberts get the remaining five conservative judges to adopt a similar stance?  Or are we more likely to see them hypocritically hide behind the mantle of “originalism” to carry out their own activist agenda?”

I am still waiting for Justices Roberts, Clarence Thomas and Samuel Alito to show me the Constitutional language which justified their finding in Citizens United that money equals speech.

For what it’s worth.
Dr. ESP