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The Anti-Immigrant Judicial Pipeline Keeps Gushing

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This article was originally published by David Leopold as a post on Medium.com

Last week, the United States Supreme Court granted certiorari in Biden v. Texas, another case brought by Republican Attorneys General to thwart the Biden administration’s immigration policies. This case involved the Trump administration’s “Remain in Mexico” policy, which the Biden administration was trying to end. But, that’s not what happened because of the anti-immigrant judicial pipeline. Now, we’re going to see once again how the six conservatives of the Supreme Court have become reliable partners in Republican policy-making.

This shouldn’t come as a surprise. The conservative justices have been blatant about their politicization. Earlier this month, Associate Justice of the Supreme Court, Neil Gorsuch appeared at an off-the-record Federalist Society event in Florida along with GOP luminaries including former Vice President Mike Pence and Florida Governor Ron DeSantis (both of whom are potential 2024 presidential candidates.)

We also learned that Supreme Court Justice Clarence Thomas has been in contact with DeSantis. Of note, Florida was a party to several cases before the Supreme Court, including the recent COVID mandate challenges.

That these Supreme Court Justices care so little about their appearance of bias and engaging in partisan politics says so much about the current state of the Court. This has been the trajectory of the Roberts’ court for several years. And, Biden v. Texas is another immigration case that will likely show how the Court has become a political operation. As Slate’s Mark Joseph Stern explained, “The Supreme Court will decide whether a lone Trump judge has authority to seize control of the president’s power over immigration, force his diplomats into negotiations with Mexico, and rewrite immigration law to demand mass detention and expulsion of migrants.”

There was a time when an assertion like that would have seemed preposterous and beyond the realm of rational analysis. Not anymore. It’s been an ongoing development for years. And, immigration cases have been at the forefront of this unprincipled and disreputable change in the way our judiciary system works..

Back in 2016, as the Supreme Court was preparing to hear the Republican challenge to President Obama’s executive actions on immigration, I warned about it.

In a post titled, Texas v. US is an opportunity for the Supreme Court to show it’s not tainted by partisan politics, published on February 26, 2016, I cautioned about the challenge to Chief Justice Roberts:

Yet despite the politically charged atmosphere left in the wake of Scalia’s passing, the eight justices of the Supreme Court — and Chief Justice Roberts in particular — are presented with a critical opportunity to dispel the impression the Court has been corrupted by politics — something Linda Greenhouse noted Roberts had a hand in creating; that it is indeed the dispassionate umpire of “balls and strikes” Roberts described in his 2005 confirmation hearing.

We know how that turned out. The Court deadlocked 4–4 on the immigration case and several months later Donald Trump was elected President. With the assistance of Mitch McConnell, Republican Senators, and the Federalist Society, Republicans spent the next 4 years packing the Supreme Court and lower courts with right-wing zealots.

That was when Republicans first broke ground on what we now call the anti-immigrant judicial pipeline. Back then, Texas Attorney General Ken Paxton had limited options but knew U.S. District Judge Andrew Hanen of Brownsville, Texas would be a reliable ally in the attack on Obama’s executive immigration actions — and he was. Hanen’s lengthy screed decrying Obama’s immigration actions was predictably rubber stamped by the reliably conservative Fifth Circuit.

Then it was on to the Supreme Court. At the time, in the spring of 2016, the Court was divided 4–4 because Mitch McConnell and Republican Senators were blocking the confirmation of Merrick Garland. The seat was eventually filled by Donald Trump who appointed Neal Gorsuch.

Today, Ken Paxton has a wide range of conservative judicial ideologues at his disposal and he has taken full advantage of it.

The judicial system is broken but the right wing pipeline is stronger than ever. Strength and endurance tested by Republican attacks on immigration, it’s now used by Republicans as a reliable political weapon against a broad range of issues, including abortion, the environment, COVID-19, and LGBTQ.

That’s one reason why Americans’ favorable view of the high court has fallen precipitously: from 69% in August 2019 to 54% according to PRRI.

It’s clear that Republicans in Congress and in the states intend to use Republicans in the judiciary to thwart the Biden administration in every possible way.

There is only one solution: expand the courts. Several Democrats in the House and Senate have introduced The Judiciary Act (H.R. 2584 and S. 1141) to expand the Supreme Court to 13 seats, matching the number of circuits.

Right now, we’ve got a Supreme Court where the conservative members flaunt their political allegiances, ignore precedent, and fulfill the wishes of their GOP base.

That’s not justice. It’s partisan politics. And it has no place in American courtrooms.