Earlier this month Chief Justice John G. Roberts Jr. lamented that “partisan extremism is damaging the public’s perception of the role of the Supreme Court, recasting the justices as players in the political process rather than its referees.” Roberts was referring to the very real danger of institutional mistrust—the widespread belief among the American public that the Court is no longer an impartial judicial body focused on impartial interpretation of the Constitution, but that its decisions are increasingly aimed at moving a partisan agenda.
Robert’s concern is well founded. The political pressure on the justices—particularly from the right—is perhaps more intense than at any time in the nation’s history.
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. And, as the Court moves on to tackle a docket laden with cases ranging from abortion to worker’s rights to affirmative action, no case presents the justices with a greater opening to eschew the intrusion of politics into the courtroom as U.S. v. Texas, the challenge to Obama’s executive actions on deportations.
The lawsuit is unquestionably a brazen political attack on the president’s November 20, 2014 deportation deferral known as DAPA and DACA expansion. Before the ink was even dry on the deferred action guidance, Republicans in Congress tried repeatedly to block the President’s actions – and they failed repeatedly. Taking another route, the state of Texas, joined by mostly GOP governors and attorneys general from 25 states, shopped for a friendly judicial forum in which to launch a legal assault. And they found one in the Brownsville, Texas, courtroom of U.S. District Judge Andrew Hanen, who’d made a name for himself in other cases excoriating the Obama administration for what he described as its “failure to enforce current United States law.” The GOP politicians took page from the playbook of birther queen Orly Taitz who identified Hanen as anti-immigrant and filed a lawsuit in Hanen’s court to stop the federal government from bussing immigrant minors from Texas to temporary detention centers outside the state. As predicted, Hanen blocked DAPA and DACA expansion and was later affirmed by the Fifth circuit, the most conservative appeals court in the country.
The Supreme Court agreed to hear the case in January and until Scalia’s death many court observers speculated that the key to upholding the president’s executive actions was Justice Anthony Kennedy, who has been a key swing vote in several immigration cases and wrote the majority opinion in Arizona vs. U.S. which recognized the president’s broad discretion over deportation matters, including deferred action.
Since Scalia’s passing the media has been ripe with speculation that the eight justice Supreme Court will divide equally along ideological lines and deadlock 4-4 with Justices Ginsburg, Breyer, Sotomayor and Kagan voting to uphold the President’s executive actions and Justices Roberts, Kennedy, Alito and Thomas voting to strike them down. A tie vote would not set a national precedent but would return the case to Hanen’s court. No doubt cases would be brought by advocates – and even states - to end the injunction in other states that welcome the president’s deportation deferrals. That’s the kind of judicial chaos that Roberts seems to want to avoid.
Fortunately, all this is rank speculation. It’s impossible to know what the Supreme Court—or any individual justice—will do in any case. The more important question is whether the justices will take the opportunity to demonstrate to the nation that they will not allow the judiciary to be used as a forum for partisan political attacks. If they do, there is no doubt that a healthy majority of the court will vote to dismiss the lawsuit, lift the injunction and make clear to the nation that political disputes are to be decided at the ballot box, not in the Supreme Court of the United States.
Leopold, an immigration attorney, serves as counsel to immigration reform groups and is the former president of the American Immigration Lawyers Association