Dear Dahlia, Akhil, Dawn, Mark, and Dick,
It was 15 Junes ago that Dahlia and I began this Breakfast Table discussion at the end of the Supreme Court term, enhanced in recent years by the (sometimes acerbic) insights of Judge Richard Posner, Slate’s Mark Joseph Stern, and now by Indiana’s Dawn Johnsen, and Yale University’s Akhil Amar. You all are either brave or foolhardy to agree to react so quickly to the knotty decisions we are facing in the coming days.
This, of course, is the first of those 15 terms in which the court has had an even number of justices—a fact that could add considerable complexity to the dynamic of these final days of the 2015 term.
This is particularly true of United States v. Texas, a case that will decide the fate of 4.3 million people who are currently eligible for deportation. These Americans—mainly parents of U.S.-citizen children—were granted deferred-action status last November by Obama administration guidance, a policy of forbearance from deportation. Under regulations going back to the Reagan era, these people are also authorized to work.
Almost everyone who attended the oral argument came away with the impression that the eight-member court seemed evenly divided on whether the president had lawful authority to take this action. What is an evenly split court to do if that proves correct? The usual practice would be to issue a single sentence order affirming the decision below. I don’t think there has ever been a case in which such an affirmance would be more unpalatable.
In this appeal, the states that challenged the Obama guidance had their choice of district courts all over the country, and they chose a Texas judge whose remarks suggest real hostility to immigration. Stretching the limits of his authority, that trial judge then issued a nationwide injunction shutting down the entire program. Of the four judges who heard parts of the appeal, two believed the program to be lawful.
What an astounding result it would be if the court followed the normal practice of simply noting without opinion that the decision below is “affirmed by an equally divided court. For practical purposes that would mean that more than 4 million Americans and their families would suffer a grievous setback to their lives, with no opinion from the Supreme Court as to why this executive action taken by an elected President must be set aside.
There is another way out. The court could simply hold that the president’s immigration guidance caused no legal injury to Texas. Although this point did not seem to gain much traction at the oral argument, it still remains a possibility. For an argument that the trial judge should be ordered to dismiss the case for lack of standing, thus permitting the guidance to go into effect, see the amicus brief filed on my behalf.
If the high court does dismiss the case for lack of standing, many may say that the Obama administration had prevailed on a “technicality.” But that would be wrong. As I have argued in Breakfast Table debates over the many years, the standing question is profoundly important. Why is it that nine people (actually, eight people at the moment) in a country of 320 million are allowed to resolve important issues in a way that is binding on the rest of us? Because courts have a job to do: to provide relief to those who have suffered a legal injury. In doing that job, courts must necessarily determine the law. But if the party who brings the case has suffered no real injury, there is no legitimate basis for courts to second-guess the decisions of democratically elected officials. A ruling holding that Texas can bring this suit would greatly aggrandize the role of the courts. Holding that Texas lacks standing would keep the judiciary in its proper lane.
In one of the other major Texas cases (in terms of producing Supreme Court litigation, Texas is the new Florida), the reality of the injury is beyond dispute. Whole Woman’s Health v. Hellerstedt is a challenge to a Texas law that requires all abortion providers to have admitting privileges at a nearby hospital and to retrofit their facilities to meet surgical standards.* This is potentially the most important reproductive rights case since the court decided Casey v. Planned Parenthood in 1992, for it could determine what level of scrutiny the court will apply to the flood of laws that are crippling access to abortion across the country. In terms of practical harm, as a result of clinic closures caused by Texas’ needless restrictions, more than 750,000 Texas women will live more than 200 miles from the nearest clinic, a burden that falls with special harshness on low-income women who have no access to private transportation.
Texas argues that its law is necessary to protect women’s health. In a powerful opinion in a separate case from Wisconsin this past fall, Judge Posner shows why the admitting privilege requirement makes no sense. And in a powerful brief in the Texas case, leading medical professional groups, including the American Medical Association, argue that the two Texas provisions are positively harmful to women’s health.
For a court evenly divided over abortion, it may turn out that the Texas law is so patently lacking in medical merit that it offers a path to at least a (temporary) resolution. The court could avoid determining anew what standard of review should apply to abortion laws by simply agreeing that these patently ridiculous Texas restrictions could not survive any level of judicial scrutiny. Over and above the two Texas blockbusters, we await opinions in a third Texas blockbuster, testing the use of race as a factor in admissions at University of Texas at Austin, a case that cannot split 4–4 because Elena Kagan is recused.
I look forward to all of your reactions to what will unfold Thursday and next Monday and perhaps another day next week as well. I would suggest that for some activities, having fewer participants makes things simpler. That does not seem to apply to Supreme Court decision-making. Having one fewer justice makes this a particularly unpredictable term.
*Correction, June 23, 2016: Due to a production error, this article originally misspelled the plaintiff’s name, Whole Woman’s Health. (Return.)