Tue Jun 28, 2016 by Anil Kalhan
United States v. Texas: The Supreme Courtâ€™s Silent Endorsement of Trumpisprudence (Dorf on Law)
It may be tempting to regard the Supreme Courtâ€™s deadlocked decision last week in United States v. Texas, the Republican lawsuit challenging the Obama administrationâ€™s 2014 immigration initiatives, as something of a â€œnon-decisionâ€ or â€œpunt.â€ The Courtâ€™s one-line opinionâ€”which, by convention, affirms the lower courtâ€™s judgment but has no further precedential effectâ€”does not address any of the substantive issues presented in the case. Nor does the opinion itself disclose how any of the justices voted on any of the questions before them, although there seems little mystery as to which justices were likely on each side of the decision. And especially since the case came to the Supreme Court at the preliminary injunction stage, the litigation may be far from overâ€”making it even more plausible to understand the Courtâ€™s decision as one that defers ultimate resolution of those issues.
At the same time, to characterize the Courtâ€™s decision as merely an â€œinability to decideâ€ 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 â€œmissed an opportunity here to give some guidanceâ€ on the controversial legal questions before itâ€”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, â€œ[s]eldom have so many hopes been crushed by so few wordsâ€â€”about which he, too, is unmistakably correct.
In addition, by affirming the legally flawed and deeply politicized lower court decisions blocking the Obama administrationâ€™s immigration initiativesâ€”the substance of which I have previously discussed in several essays for Dorf on Law (here, here, and here), an essay for Yale Journal on Regulation Notice and Comment, an essay for Washington Monthly, and an article in the UCLA Law Review Discourseâ€”the Supreme Courtâ€™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 Courtâ€™s stalemate, the four justices who voted to affirm those decisionsâ€”presumably Chief Justice Roberts and Justices Kennedy, Thomas, and Alitoâ€”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 administrationâ€™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.
[A version of this essay is also published at Newsweek]