Tuesday, January 26, 2016
By Noah Feldman
Bloomberg View
We now have our major Supreme Court story of the year: The justices will review the constitutionality of President Barack Obama’s plan to defer deportations, stalled by the U.S. Court of Appeals for the 5th Circuit. The court’s decision to take the case, United States v. Texas, ensures major drama around the oral argument in April, and fevered anticipation in the runup to the announcement of the court’s decision sometime in late June.
The dramatic pattern produced by the hearing of a hugely significant case is starting to seem normal for the court. The Affordable Care Act, the Voting Rights Act, gay marriage and now immigration have each guaranteed – and merited – tremendous public attention.
As a professor of constitutional law who also writes about the court in this column, I can hardly complain. It’s all good for business. But it’s worth pausing with a moment’s nostalgia for the days when many Supreme Court terms were in fact very boring, with almost no cases decided that would interest the public. (I clerked in one such term in October 1998. You could look it up.)
My proposed moment of silence for the boring court term has a point. It should lead us to ask whether the Supreme Court was correct to take the immigration case, as the Obama administration urged it to do.
Missed opportunity
My instinctive answer is that the court shouldn’t have granted certiorari. This was a missed opportunity for the court to employ what the late, great constitutional scholar Alexander Bickel called the “passive virtues” – deciding not to decide, and thus preserving the institutional legitimacy of the court rather than plunging it into a political fight without creating useful legal precedent.
On the surface, this must seem like a hard choice to make. In its petition to the Supreme Court, the solicitor general’s office said that the court of appeals “committed manifold and significant errors in affirming the unprecedented nationwide injunction barring implementation of an important federal policy affecting parents and children.”
But ordinarily, the Supreme Court doesn’t see the correction of error by the lower courts as sufficient reason to hear a case, even if that error affects children, like those who would be allowed to stay in the country under Obama’s announced policy. Typically, the court wants to see a split between different courts of appeals or state supreme courts on questions of legal importance.
The nationwide nature of the 5th Circuit’s injunction does create some reason to hear the case. If followed scrupulously, it could’ve created the possibility that other appeal courts couldn’t have gotten cases before them that would allow alternative rulings to emerge.
‘Humanitarian impact’
But the Obama administration didn’t make the scope of the injunction one of the questions it presented in its petition to the Supreme Court. It didn’t concede that the policy couldn’t go forward or be challenged elsewhere. Instead it complained that “the nationwide injunction has far-reaching and irreparable humanitarian impact.”
In essence, the Obama administration was arguing that the court should take the case because it’s so important. Unspoken but implicit is the fact that the president’s executive action on immigration is meant to be one of the signature accomplishments of his administration.
The solicitor general’s office was more or less saying that this case falls under a newish category of cert grants. To use the lingo of the law clerks who write cert memos, the case is splitless error correction – but it’s also national news; the court should therefore grant the petition to hear it.
What would’ve happened if the court hadn’t taken the case? In the roughly six months between the end of June when the case will be decided and the end of January when Obama leaves office, the executive action would’ve remained frozen.
Then, either a Republican president would reverse the action, meaning that nothing would change, or a Democratic president would renew the plan, as Hillary Clinton has suggested she would do. In that scenario, the court would have little choice but to take the case. The upshot would’ve been a six-month delay.
By taking the case now, the court might be producing a decision that would have effect for just six months. That’s not the end of the world, taken on its own terms.
But the court’s decision is guaranteed to be announced in the heat of a highly contentious presidential campaign in which immigration is already a major topic. Even though the court’s decision will be framed as an analysis of the relationship between executive power and the power of Congress to make immigration law, it’ll be widely and popularly understood in the light of the political debate.
Executive power
That’s bad for the court – and could be bad for the law of executive power. Imagine the pressures on Justice Anthony Kennedy, who might well be the swing vote again. Supporting executive power might be misread as support for the Democratic candidate, which Kennedy would abhor. Or holding against the Obama administration might be seen as supporting the Republican candidate, which Kennedy, to his credit, would abhor equally.
The justices are capable of trying to keep politics out of their decisions. But the public isn’t capable of ripping judicial decisions out of their electoral context. A decision during the next presidential term would’ve come under far less intense political pressure.
Noah Feldman is a Bloomberg View columnist.