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Following US v. Texas Deadlock, Top Legal Analysts Criticize Supreme Court

 

Last week’s 4-4 tie in the US v. Texas immigration case has generated disappointment and outrage from immigrant families and their allies from across the country. A growing chorus of legal minds have added their voice to the criticism, noting in particular the weakness of Texas’ original case, the failure of the court to explain the rationale behind the tied decision, and the need for the case to be reheard when the Supreme Court has nine Justices.

Excerpts from several key legal analyses follow below.

Linda Greenhouse, New York Times, “The Supreme Court’s Silent Failure on Immigration”:

…In sharp distinction from its neighbor on Capitol Hill, where entire agendas can disappear without a fingerprint, the justices take ownership of their work. They sign their opinions. They explain how they reached their conclusions. It’s essential: Having bestowed upon this handful of life-tenured individuals such enormous, even anomalous, power, in a democracy, the American people should expect at the very least that the justices are willing to stand up and be counted.

And then came last week’s deadlock in the immigration case, a 4-to-4 tie announced in a single sentence — “The judgment is affirmed by an equally divided court” — without identifying the justices on either side or their competing views. Since a tie vote automatically affirms the lower court’s ruling, the result in this case, United States v. Texas, was to bar more than four million people, unauthorized immigrants who are the parents of United States citizens or legal residents, from the benefit of deferred deportation that President Barack Obama intended to confer on them.

“Seldom have so many hopes been crushed by so few words,” Walter Dellinger, a former acting solicitor general, wrote on Slate.

… But while familiar in form, the opacity in this instance seems to me to have a more explosive consequence, and not only because of the decision’s devastating impact. I see it as devastating for the Roberts court as well, a court that has seemed for the past few years to teeter on the brink of becoming a tool of partisan warfare, only to be rescued occasionally by the deft hand of Chief Justice John G. Roberts Jr. This time, he failed himself and his court.

… What might the court have done differently? Chief Justice Roberts’s core commitments have always included strict rules for standing. It would have been entirely consistent for him to explain why Texas’ flimsy standing argument, based on the cost of driver’s licenses, couldn’t sustain a major challenge to presidential power. What would have been very hard to explain was why the standing rules no longer mattered when the case was against the administration of a certain president. Easier just to say nothing.

Anil Kalhan, Associate Professor, Drexel University Thomas R. Kline School of Law,  “United States v. Texas: The Supreme Court’s Silent Endorsement of Trumpisprudence”:

At the same time, to characterize the Court’s decision as merely an “inability to decide” misses something consequential and troubling about that disposition. It is not merely the case, as Jack Chin and other legal observers have understandably lamented, that the Court “missed an opportunity here to give some guidance” on the controversial legal questions before it—which of course it did. Nor is it only the case, as Walter Dellinger has powerfully observed, that with the lives of millions of U.S. citizens and non-U.S. citizens at stake in this litigation, “[s]eldom have so many hopes been crushed by so few words”—about which he, too, is unmistakably correct.

In addition, by affirming the legally flawed and deeply politicized lower court decisions blocking the Obama administration’s immigration initiatives—the substance of which I have previously discussed in several essays forDorf on Law (herehere, and here), an essay for Yale Journal on Regulation Notice and Comment, an essay forWashington Monthly, and an article in the UCLA Law Review Discourse—the Supreme Court’s decision necessarily embraces modes of legal analysis and adjudication that the Court should have openly and decisively repudiated. And by doing so instead under the cover of an opaque, unsigned opinion that reports only the bare fact of the Court’s stalemate, the four justices who voted to affirm those decisions—presumably Chief Justice Roberts and Justices Kennedy, Thomas, and Alito—obscure their own roles from public scrutiny at the expense of transparency and accountability. (Which, as it happens, are among the very rule of law values that the Obama administration’s immigration initiatives themselves, by contrast, actually help to promote.) Both the continuities with and the contrasts to what has been transpiring in the political process this year are striking.

… As noted above, the litigation in this case is by no means over—that is, assuming that Paul Ryan’s man Trump does not win the election and moot the lawsuit altogether by rescinding the Obama administration’s initiatives. But assuming that Trump does not win, the litigation will likely proceed to trial, after which it may return to the Fifth Circuit and eventually the Supreme Court, which might or might not by then (or ever) have a ninth justice. In the meantime, Judge Hanen’s other shenanigans, concerning the sanctions he wants to impose upon the Justice Department, will likely result in a separate trip to the Fifth Circuit and perhaps even the Supreme Court as well.

But regardless of what might later transpire in this litigation, public confidence in the judiciary as an institution has been disserved by how the Supreme Court and lower courts have handled this lawsuit to date. The bottom line for many will be this: partisan political actors maneuvered to steer a legally dubious lawsuit—one that seeks to invalidate initiatives that were lawfully instituted by a democratically legitimate president, and that deeply affect millions of people—before a rogue judge with a checkered history of gratuitous, anti-immigration commentaries, and successfully obtained a partisan result from that judge even though the factual and legal bases for their claims were highly questionable. Four justices of the Supreme Court not only endorsed and gave effect to that politicized judicial assault, but also evidently have embraced modes of contention more appropriately relegated to the political process, if even there. And they did so without giving any reasoned explanation for that endorsement. In the process, the traditional norms of judicial fact-finding and reasoned adjudication have taken a significant hit. It is difficult to disagree with Dellinger’s conclusion that the result constitutes a “signal failure of democracy.”

Former Solicitor General Walter Dellinger, Slate, “The battle is not over.”:

This battle is not over. The Department of Justice should consider taking a step it has rarely taken: filing a motion asking the court to reconsider the decision and further asking the court to defer acting on the petition until there is a full complement of justices. I believe that at least twice during the New Deal, the Franklin Roosevelt administration successfully asked for a rehearing of cases that had been heard by an equally divided court.

For now, however, today’s decision casts the counter-majoritarian role of the court in a particularly harsh light. Immigration reform more sweeping than that undertaken by the president was supported by more than 70 senators and would have been supported by the House of Representatives, as well as the president. So why is it not law? Because the House Republican leadership refused to allow legislation supported by a majority of the House to come to a vote.

And now a more legally modest, but enormously important, action taken by a president twice elected by clear voting majorities has been set aside by a small group of unelected judges. I recapitulate: This was a case brought before a judge singled out by the challengers because there was no doubt as to his hostility toward current immigration policies. His overreaching nationwide injunction was upheld by two 2–1 panels (with the four judges who sat on the two cases combined splitting 2–2). And now four justices who disagree with four other justices have brought the president’s program down. And because the court lacks a ninth justice, and is evenly divided, we don’t even have the benefit of an opinion explaining this extraordinary result. This decision, or non-decision, represents a signal failure of democracy.

David Leopold, Former President of the American Immigration Lawyers Association, “On DAPA and DACA+, It’s Not Over”:

The 4–4 split among the 8 justices in U.S. v Texas means, legally, that the Court did not make a decision. Anyone who imputes some constitutional principle from it, like Texas Attorney General Ken Paxton, Speaker Paul Ryan and many of their fellow Republicans, either doesn’t understand the Constitution and the Courts or is just willfully misleading everyone — or both.

… The Obama administration does not have to simply accept the Supreme Court’s failure to rule. It can — indeed should — immediately file a motion for reargument before the Court to take place once a ninth justice is confirmed by the U.S. Senate. Granted, given the continued obstruction by Senate Republicans, a new Justice may not be seated for several months and possibly not until the next President is sworn in.

…In Chief Justice Roberts’ mind, he’s a stickler for standing in the federal courts. But, today, he showed his politics trump his principles. Today he made it clear that political questions are justiciable, if they are brought by his political allies.

Marshall Fitz, Managing Director of Immigration at Emerson Collective, “The Future of America Deserves Better than Partisan Gridlock and Judicial Paralysis”:

Today’s one-line order from the Court amounts to a non-decision. It sets no precedent and reflects no judgment by the Court on the merits of the case or the underlying policies. But the impact of the Court’s paltry statement is far from neutral — it is an insult to justice. By preserving the status quo of the lower court rulings, it inflicts active harm on individuals, families, and communities across the country.

… Sadly, this failure by the Supreme Court to break the gridlock and enable the country to move forward is the culmination of a deliberate and concerted Republican strategy of immigration obstruction.

…The fact remains that DAPA and expanded DACA are commonsense programs that are lawful, constitutional, and consistent with decades of actions taken by presidents of both parties. Tragically, their implementation and the clear benefits that would flow from them have been subjected to withering partisan obstruction.