One of the lessons of the new HBO film Confirmation, starring Kerry Washington and Wendell Pierce as Anita Hill and Clarence Thomas, is the extent to which fights about the Supreme Court are not simply about what is or what may be, but also about what could have been. Confirmation thus opens with the borking of Robert Bork for a seat at the high court, and the GOP outrage that engendered. This is important, because it explains the extent to which seating Judge Thomas—even if it meant destroying Professor Hill—became a Republican priority. In the party’s view, that seat belonged to Bork and it was stolen.
This same coulda, shoulda imperative is crucial for understanding the derangement that simmers beneath the GOP obstruction of hearings for Merrick Garland. You may think we are at war over what the court might become. But we are in fact at war over what should have been. And what should have been, for Senate Republicans, is quite simple: The 2016 term was meant to be the Supreme Court’s year to destroy Obama.
You could almost forget this, as the term fizzles into a bunch of sagging 4-4 ties and improbable unanimous decisions, but if Antonin Scalia had lived until July the docket was full of poisoned pills and silent time bombs that would have exploded in President Obama’s face this summer. Until and unless we reckon with what might have been at the high court this term, it’s impossible to understand why there will be no hearings for Judge Garland. GOP senators aren’t just angry about losing Justice Scalia’s seat. They are angry because the court as the weapon of choice to screw the president has been taken from them, and they want it back.
United States v. Texas, the case that will be argued Monday morning at the high court, is Exhibit A for this proposition. When the high court agreed to hear this lawsuit—which emerged from nothing more than a preliminary injunction placed on 2014 DHS regulations that outlined the creation of Obama’s Deferred Action for Parents of American Citizens and Lawful Permanent Residents (DAPA) and expansion of Deferred Action for Childhood Arrivals (DACA)—Obama haters were dancing in the streets. The executive actions, which delayed deportation for 5 million undocumented immigrants by deprioritizing their removal from the country in favor of the deportations of felons, were blocked in Feb. 2015 by one very conservative district judge in Texas. That decision to enjoin the new rules was happily upheld by a panel of the 5th U.S. Circuit Court of Appeals last fall. When the court agreed to weigh in on all this, it was because—as Solicitor General Donald Verrilli argued—this action by the appeals court was “unprecedented,” just as the high court’s decision to step in and block Obama’s climate change regulations last February was unprecedented. The whole term was meant to be unprecedented, except that Justice Scalia died.
Most of what you need to know about the challenge to Obama’s executive actions here is that—as complex as many elements of this case are—it is not really in grievous doubt that the president is allowed to do what he did. Even the opponents to his actions concede much of that, as Simon Lazarus noted recently in the New Republic. And as the Supreme Court itself determined in a 2012 case called Arizona v. United States, “a principal feature of the removal system [used to remove immigrants from the country] is the broad discretion exercised by immigration officials.” So this isn’t really a case about psychotic presidential overreach as much as it is a political challenge to anything Obama does as definitionally constituting psychotic presidential overreach. Because Obama.
Also, this case comes with a massive standing problem. As a general rule, courts can’t hear lawsuits unless the plaintiff has suffered some injury. Without such standing, courts have no role to play in deciding the issues. Texas is claiming that it has standing to fight the president’s immigration actions because it grants driver’s licenses to DAPA beneficiaries, and the state has to pay for this. But the Obama administration argues that Texas chooses to allow DAPA recipients to get driver’s licenses, and they could just opt not to. More urgently they contend that if states can bring politically motivated lawsuits against every single government policy they don’t like simply because states pay for something, the court will be flooded with an infinite number of lawsuits over an infinite number of policies.
Because Chief Justice John Roberts has been the court’s standing-whisperer—doggedly guarding the courthouse doors from frivolous plaintiffs bringing silly suits—supporters of Obama’s executive actions are counting on him to stand firm on the principle that hating the president really, really hard is maybe not sufficient reason to confer standing to the plaintiffs here. Of course, there is also the matter that real people will suffer grievous harms if the administration loses this case.
What this case really means—and this is important—is that insofar as this entire term was intended to do away with Obama’s immigration action, and Obama’s climate action, and “one person one vote,” and public-sector unions, and the right to choose, and Obama’s birth-control subsidy, well, that isn’t going to happen. Moreover, with Roberts now tasked with making sure that the court looks like the branch of government that isn’t in need of a diaper change, the term will surely play out with quiet dignity, where it once might have been a GOP romp.
United States v. Texas will be the most interesting political fight of the year at the high court. But at worst it will end in a confusing tie, or an ambiguous compromise. A tie vote means the appeals court’s decision to enjoin the new initiative would stand, and the case would have to work its way back through a different appeals court on the merits in the coming years. That will sow confusion, delay, and ambiguity. But don’t just watch this case for what it is. Watch it for what it might have been, and what it won’t be, because the five-justice majority that could have kneecapped the president is gone. That gap—between a chance to rout the president in his last year in office and the court’s new obligation to appear like a serious third branch of government now that that opportunity is gone—is where the Texas immigration case and so many Tea Party litigation dreams for this term have gone to die.
