I’ve been reading with interest the various news reports detailing the oral arguments in U.S. v. Texas, better known as the case challenging Obama’s so-called executive amnesty (you can read my explainer of the case here). The consensus is that the court was — big surprise — “sharply divided,” with a 4-4 tie looking likely. Here’s The Hill:
Justice Anthony Kennedy, who is typically the court’s swing voter, seemed to side with Texas and the 25 other states arguing the president overstepped his executive authority in granting deferred deportation to nearly 5 million immigrants.
Kennedy said the justices were being asked to define the limits of discretion, adding that Obama’s actions seemed more like a legislative act than an executive one.
“It’s as if the president is setting the policy and the Congress is executing it,” he said. “That’s just upside down.”
If the court is evenly split, the the lower court injunction blocking the program will stand, and executive amnesty would almost certainly be blocked for the remainder of Obama’s term. A new president could abandon the policy entirely, press forward to defend Obama’s actions, or even — as Hillary Clinton has promised — try to push for even broader executive relief.
Perhaps the most curious analysis of the oral arguments comes from Vox’s Dara Lind. Unless I’m reading her incorrectly she seems to suggest that the Court should defer to the cries of the crowd. After first describing the protests outside the courthouse, Lind says this:
The Supreme Court gives every impression of trying to shut the real world out. And in today’s oral arguments, that was just as true as ever; the real-world impacts of the United States v. Texas case — or the ramifications of a 4-4 split Supreme Court decision on one of the most important cases of the term — were studiously and deliberately ignored.
This is, to a certain extent, how the Supreme Court is supposed to work: separating the heated political debate over President Obama’s immigration executive actions (which easily gets tied up in how people feel about either immigrants or Obama) from the relatively narrow questions about whether those actions were legal.
But with only eight justices on the bench for the immigration case — perhaps the most important case it will take up this term — the stakes are high. The two potential swing votes on the court sounded pretty indistinguishable from their conservative colleagues during Monday’s questioning, and the Court’s studied indifference to the context of its rulings could leave it cracked on the shoals of a 4-4 split decision.
In fact, this is exactly how the Supreme Court is supposed to work. Not even one million chanting protesters could change the text of the Constitution or of any relevant statute, and the fact that that the stakes are high makes it even more important that the Court maintain “studied indifference to the context of its rulings.” While protesters certainly have the right to chant, they should have exactly zero influence on the Court’s reasoning.
But Lind is hardly alone in urging the Court to think about “context.” Indeed, President Obama has long argued for an “empathy standard,” where judges have the “empathy to understand what it’s like to be poor, or African American, or gay, or disabled, or old,” but these compassionate-sounding words often mean applying different standards of justice based on the identity of the litigant — a human temptation that is at odds with the rule of law itself.
Judges are human, and they are of course influenced by human factors — including sympathy for litigants — but the role of a good judge is to do his best to block his personal or political preferences from his reasoning. Indulging in “empathy” or pondering “context” sends a court down a dangerous, biased path.