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Supreme Court Rulings On DACA, Civil Rights Act Deal Blows To Conservatives

LULU GARCIA-NAVARRO, HOST:

Conservatives' social agenda has taken several blows. First, the Supreme Court, by a narrow vote, decided that the Civil Rights Act protected gay and transgender Americans from discrimination. And then the court ruled that the executive branch had not acted legally to end the Deferred Action for Childhood Arrivals program, also known as DACA. Our next guest says that the chief justice who cast the swing vote is obstructing Trump's agenda. Carrie Severino is an attorney and is the president of the conservative Judicial Crisis Network. And she joins us now. Welcome.

CARRIE SEVERINO: Good to be here.

GARCIA-NAVARRO: So there's been a lot of discussion on the right about these two decisions because there's been a conservative push for decades, which has been accelerated by this administration, of installing conservative judges. President Trump ran on the Supreme Court in 2016. He's put in two right-leaning judges, and here you have two defeats. Does that show that the strategy has failed?

SEVERINO: Well, look. Chief Justice John Roberts is not a Trump appointee. And, in fact, Trump's vetting process was explicitly designed to avoid problems like we saw with the Obamacare ruling where, for all intents and purposes, it appears the chief justice changed his vote in order to avoid what looked like a politically contentious result. And that's exactly what appears to have happened in the DACA case, in the census case. Now, I don't know if he changed his vote in the DACA case, but his conclusion was based on an analysis that is more political than legal. This is applying a different standard to the Trump administration than it did to the Obama administration. And while I don't actually think the chief justice himself is trying to obstruct the Trump agenda - I think that's not quite what I mean. What I mean is he's allowed the court to be used as a tool by those who are trying to obstruct the agenda. And that is very damaging for the court and is a major step in making the court more political, not less.

GARCIA-NAVARRO: Well, actually, doesn't it show the court's independence from political interference?

SEVERINO: That depends on what the reasoning for your decision is. If you are making your decision based on simply what the law is, yes, that's exactly the right conclusion. If you are choosing to make a different legal analysis because you want to avoid having the court become the focus of political debates, that's actually a political reason.

GARCIA-NAVARRO: But you can't be inside the chief justice's head. You don't know why he cast the vote the way he did.

SEVERINO: That is true. However, I can see that the standards he is applying are not even-handed standards to the Trump administration and the Obama administration, and that itself is a violation of the rule of law and is itself political.

GARCIA-NAVARRO: The country has shifted in its view of homosexuality and in its view of protecting DREAMers. We've seen polls that show strong support for both across party lines. Justices live in the real world. Why shouldn't they take that into account? Are they supposed to rule for the extreme minority?

SEVERINO: The justices are supposed to rule in accordance with what the law says. Those are the kind of things that absolutely should be taken into account by our legislators, but it's not the justices' role to be the ones updating or changing the law to keep it in tune with what the American public wants now. That's how the legislature change the law, and that's our constitutional system. When judges are effectively updating the law, then they are stepping outside of the judicial role. And as Justice Alito said in his dissent in the Bostock case, there's only one word for that, and that is legislation.

GARCIA-NAVARRO: The Supreme Court is expected to hand down a decision in a Louisiana abortion case requiring doctors to have hospital admitting privileges. This will be the first time an abortion rights case has been heard by a court where the majority have an anti-abortion-rights judicial record. How concerned are you that this vote won't go your way, considering some of the comments by Chief Justice Roberts about the analysis?

SEVERINO: Well, I still really don't know how it will go. We do know that, a few years ago, a similar law was considered by the court in Texas, and Chief Justice Roberts found that law was constitutional. Now, it's possible the Chief Justice will switch his position on this issue. If he does, it will be inconsistent with his own positions just a few years ago.

GARCIA-NAVARRO: Carrie Severino is the president of the Judicial Crisis Network. Thank you so much for being with us.

SEVERINO: Thanks for having me. Transcript provided by NPR, Copyright NPR.