Today the Supreme Court, in two dramatic decisions, reminded everyone of what the most important issue in the 2016 presidential election really is. In the first case, the justices upheld the University of Texas’s affirmative action program in a surprising 4-to-3 decision written by Justice Anthony M. Kennedy. (Justice Elena Kagan had to recuse herself.) But I want to focus on the other case, in which the court, shorthanded because Senate Republicans have refused to consider President Obama’s nomination of Merrick Garland to fill the seat of the late Antonin Scalia, deadlocked 4-to-4 on a critical immigration case:
The Supreme Court handed President Obama a significant legal defeat Thursday, refusing to revive his stalled plan to shield millions of undocumented immigrants from deportation and give them the right to work legally in the United States. …
The court’s liberals and conservatives deadlocked, which leaves in place a lower court’s decision that the president exceeded his powers in issuing the directive.
To clarify, this is not about the original Deferred Action for Childhood Arrivals program (DACA), which allowed people who were brought to the United States as children to stay and work legally. This lawsuit concerned the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which allowed parents who are themselves undocumented but whose children are citizens or legal residents to stay, in the interests of not breaking up families.
This case is hugely significant, not only for the millions of families that now have to worry about being split up, but also for the future of the Supreme Court. As my partner in crime Greg Sargent explained in April, the fate of DAPA was going to be decided by the next president no matter what the court did this time. Had they found for the administration, the policy would continue if Hillary Clinton wins the election, but if Donald Trump wins, he would reverse Obama’s executive action anyway and shut it down. On the other hand, now that DAPA has been suspended, if Clinton wins, she’ll probably move to have the case reheard once she gets her Supreme Court justice confirmed, and in all likelihood her administration would win 5-to-4.
And despite being on vacation, Greg emerged on Twitter to argue that if Clinton does win, the chances that the GOP will be willing to entertain comprehensive immigration reform, including a provision like DAPA, will be improved:
The GOP will have been wiped out with the ultimate restrictionist — a proponent of mass deportations who takes visible pleasure in insulting Mexican immigrants — at the top of the ticket. It’s always possible, of course, that Republicans could remain cowed by the hard right on this issue. But many mainstream House conservatives do appear open to legalization, so it is not that hard to imagine Ryan responding to Trump-inspired wipeout by marginalizing the party’s restrictionist wing and getting reform done.
Greg might be right, but I have to say I’m more skeptical than he is. The fundamental dynamic that stops the GOP from enacting comprehensive immigration reform will still be operative: while it’s in the party’s interest to communicate to Latinos that Republicans don’t hate them, most individual Republican members still represent overwhelmingly conservative districts where comprehensive reform is deeply unpopular. They know if they vote for it, they could get a primary challenge from the right. And after a big loss, as a group they’d be even less likely to support reform, since many of their members from more competitive districts, where voters might be more open to reform, will have lost. The remaining caucus will be more conservative than the current one. And we could be in for a whole new kind of tea party rising up in opposition to Clinton as it looks toward the 2018 off-year elections.
The other question is how this decision affects the thinking about the Supreme Court vacancy. One scenario that some have suggested is that if Clinton wins, Republicans will rush to confirm Garland’s appointment in a lame-duck session, reasoning that he’ll be better than anyone Clinton picks, not just because he’s known as a moderate, but more importantly, because he’s 63 years old and would therefore spend less time on the court. But there’s another scenario, one that seems outlandish but that we should consider seriously.
Republicans might decide that having a Supreme Court divided 4-to-4 is better than having one with a 5-to-4 liberal majority, and just refuse to confirm any justice nominated by a Democratic president. After all, the Constitution doesn’t forbid them from doing that; it just says that the Senate has to provide its “advice and consent.” Their advice could be that they refuse to give their consent.
And if your response to that suggestion is, “Well they’d never go that far,” you haven’t been paying much attention to today’s GOP.
Today, President Obama spoke to reporters about this case, and to my surprise, he addressed this very question:
The Supreme Court wasn’t definitive one way or the other on this — the problem is they don’t have a ninth justice. So that will continue to be a problem. With respect to the Republicans, I think what it tells you is that if you keep on blocking judges from getting on the bench, then courts can’t issue decisions. And what that means is then you’re going to have the status quo frozen and we’re not going to be able to make progress on some very important issues. Now that may have been their strategy from the start. But it’s not a sustainable strategy, and it’s certainly a strategy that will be broken by this election, unless their basic theory is that we will never confirm judges again. Hopefully that’s not their theory, because that’s not how our democracy is designed.
I promise you, there will be Republicans suggesting that after waiting most of a year to see if they could elect a Republican president and get a conservative appointed to that seat, why not just wait another four years? What’s the alternative — letting that dastardly Hillary Clinton appoint some radical leftist and deliver the Court into Democratic hands for years or decades to come? Unacceptable!
There is one final piece of this puzzle. If Democrats take back the Senate this year and Republicans were to mount a filibuster against a Clinton nominee (something which hasn’t happened in decades), then Democrats would probably change Senate rules to forbid filibusters on Supreme Court nominations. And Republicans would express their outrage at such a breakdown in the norms of that august and noble body of legislators. Just you wait.