Everyone made fun of Trump’s sing-song recitation of his predictions for the next steps on his border emergency, but he probably called the plays exactly right. So far, he’s on point.
These processes, whether involving a liberal or a conservative, usually start out with some shopping for some federal judge somewhere who is likely to produce the desired ruling. In the case of liberals challenging a conservative, that judge will be somewhere in the Northern District, within the territory of the 9th Circuit, thus almost assuring a successful suit as well as a successful appeal, whereupon the administration will attempt to get the Supremes to hear the case. Given the new composition of the Supreme Court, experts are not able to make any confident predictions about how that court will rule. While Judge Kavanaugh seems to tip the court rightward, Chief Justice Roberts seems to be leaning ever farther in the opposite direction.
I have to wonder if in the 1940’s and early 1950’s as segregation was being limited by Supreme Court decisions like Sweatt v. Painter (1950) (which found that a separate law school for negroes was unconstitutional) if Southern Democrats were arguing Plessy v Ferguson must not be overturned because of respect for precedent. I also have to wonder if (hypothetically) a liberal majority takes over the Supreme Court in 25 or 30 years if any members of that majority will refuse to overturn Citizen’s United because of respect for precedent. I can hope.
I think Chief Justice Roberts is now voting to uphold established precedent.
I don’t think that Chief Justice Roberts is to the left philosophically of Kavanaugh or any of the other Republican appointed justices (well maybe Thomas and Alito). It is more that as Chief Justice, Roberts sees it as his responsibility to protect the Supreme Court as an institution. As such he fears that too many politically charged 5 – 4 decisions may wear away the public respect for the Supreme Court. He doesn’t want it seen as just another partisan governmental institution. As such, in the most highly charged cases (such as healthcare) he looks for ways to vote with the liberals if he can’t convince any of liberals to join the conservatives. That is how Obamacare became a tax. That is probably also why Roberts voted to continue a stay of an anti-abortion law, so as to put off as long as possible the Supreme Court taking up a case where it might overturn Roe v Wade. I am pretty sure that Roberts does not want to vote to uphold that decision, but fears what a 5-4 decision overturning it might do to the Court’s prestige.