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David Leopold Previews 2023 Supreme Court and Immigration

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Washington, DC – The following is an assessment from David Leopold, Legal Advisor to America’s Voice, past president, American Immigration Lawyers Association (AILA) and Immigration Group Leader, Ulmer & Berne LLP, previewing the Supreme Court and 2023:

“Today, the United States Supreme Court will hold its first arguments of 2023. Over their break, the Court again showed it is a willing accomplice to Republican politicians when it stayed the implementation of Title 42 at the request of Republican state leaders. Sadly, the political chaos America witnessed last week isn’t confined to the House of Representatives; it permeates throughout the federal judiciary too.

Glaringly omitted from Chief Justice John Roberts’ recent annual State of the Judiciary was any reference to the historic confidence crisis the Court faces; a self-inflicted wound caused, in large part, by its willingness to welcome politics into the courtroom. Roberts and his fellow Republicans have basically turned the Court into a rubber stamp for GOP policies. 

Time and time again, the right wing Justices have allowed Republican politicians to use Republican judges, many appointed by Donald Trump, to thwart policies. That’s especially true on immigration – a phenomenon we call the Anti-immigrant Judicial Pipeline, which largely flows from federal courtrooms in Texas and Louisiana through the 5th Circuit Court of Appeals and straight into the U.S. Supreme Court. And while today’s refusal by the Court to hear an appeal brought by 14 Republican attorneys general seeking to revive the Trump era “public charge” rule is welcome, it’s an all too rare rebuff of Republican politicians by the Justices.

Over the next few months, we’ll see more immigration cases and more efforts by Roberts and his crew to step outside of their judicial roles into the political and policy arenas. It’s a dangerous trend. Republican Attorneys General, led by Ken Paxton, continue their judicial assault on the Deferred Action for Childhood Arrivals (DACA) in the courtroom of Judge Andrew Hanen. 

The Justices will hear arguments today, but will they listen? Or will they continue to use the law as a pretext to endorse Republican policy priorities? 

Chief Justice Roberts, who, at one time, made the Court’s integrity a top priority, has all but surrendered the Court’s independence, choosing instead to ignore the damage he and his colleagues have inflicted on the institution. The solutions have to come from the outside. The Biden administration needs to keep appointing more judges and the Senate needs to confirm them as soon as possible. That means the Senate Judiciary Committee should end practices, like “blue slips,” that let Republicans undermine the President. And, we need to keep pursuing creative policy options to ensure the Court’s independence, including Court expansion. 

Justice demands it.”