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A divided Supreme Court faces three divisive cases

Noah Feldman

It’s become traditional for the Supreme Court to hold its most dramatic cases for the end of the term in June. What’s different this year is that the three highest-profile cases that remain undecided — on abortion, affirmative action and immigration — all have a good chance of dividing the court 4-4. And, weirdly, all three cases come out of Texas.

The consequences of a tie differ from case to case. But together, the cases raise the possibility that this strange term will end not with a Texas-style bang, but with a whimper.

The abortion case poses a fascinating dilemma for swing Justice Anthony Kennedy. The key legal question is whether the Texas law, which imposes requirements that would close many abortion clinics in the state, constitutes an “undue burden” on a woman’s right to choose. Kennedy is the only sitting justice of the three-person coalition – the other were Sandra Day O’Connor and David Souter – that created this standard in the first place, and the case is a test of how committed Kennedy is to preserving it.

At oral argument in March, Kennedy played his card close to his vest, as he is wont to do. But the other justices’ votes seem eminently predictable. The four liberals will vote to strike down the law, and the three conservatives will uphold it.

Because the U.S. Court of Appeals for the Fifth Circuit upheld the law, a tie vote, with Kennedy joining the conservatives, would let the law stay in place. But affirmance by a divided court doesn’t create any new precedent. That would mean the undue burden standard remains unchanged. What Kennedy can’t do is make the standard any easier for states to meet than it already is. He can only make it tougher by voting with the liberals.

The affirmative action case has had more plot twists than a Hollywood thriller. The issue is the constitutionality of an aspect of the University of Texas’s admissions scheme that considers race as one among many factors in evaluating candidates “holistically.”

Oral argument took place in December, before Justice Antonin Scalia’s death. At the time, Kennedy signaled that he might send the case back to the lower court for more fact-finding, as the court did with the same case on a previous occasion.

The twist is that, at the time, the case looked like it might produce a 4-4 tie, because Justice Elena Kagan worked on the case while solicitor general and is therefore recused. That might have been one reason for Kennedy to want to remand the case. The Fifth Circuit upheld the university’s sorting-hat style admissions process, so upholding would have resulted in no precedent and no change.

Now, without Scalia, there won’t be a tie. Kennedy could vote either way and provide the decisive fourth vote in a 4-3 decision.

But Kennedy would likely be loath for a decision in such a major issue to be made with only seven justices. Deferral may still be the most attractive option.

That leaves the most electorally charged case of the three, the one involving the challenge to Barack Obama’s executive action on immigration. That’s a national policy, of course. But it’s in court because the state of Texas challenged the constitutionality of Obama’s announcement of de facto amnesty for undocumented people who came to the U.S. as children with their parents.

A federal district court judge not only froze the plan in Texas, but nationally. He’s since been in an extended fight with lawyers from the Department of Justice. The Fifth Circuit left his stay in place – that means a 4-4 vote would block Obama’s signature immigration reform from taking effect during his presidency.

The oral argument in April focused less on the president’s inherent executive power to exercise discretion in enforcing immigration law, and more on whether Texas had legal standing to bring the case in the first place. And former Solicitor General Donald Verrilli Jr. made some tactical concessions designed to allow the court to find that the executive order hasn’t changed anyone’s legal status, but just told them the president doesn’t plan to deport them.

None of the justices will want to issue a major immigration decision in an election year when immigration is such a central issue. They hate having their good names sullied by electoral politics.

And even liberals who favor Obama may find themselves on the horns of a dilemma if the case reaches the merits. The eve of a possible Donald Trump presidency is not the time for a strong opinion favoring executive authority to prosecute selectively, in the immigration area or otherwise. No doubt the liberals would strongly favor dismissing the case on the ground that Texas lacks standing.

The good news is that the ultimate fate of the immigration plan probably rests on the election more than on the court. If the court upholds the action, either Hillary Clinton will maintain it or Trump will reverse it by executive order. And if the court upholds the freeze on the plan, the election will still ultimately be decisive. If Clinton is elected, then either Judge Merrick Garland will be confirmed as the next Supreme Court justice or she will get to name her own nominee. Either way, there will then be a 5-4 majority to rule the plan constitutional. It may take longer than it should have done, but the outcome will likely be the same.

The upshot is that the court’s holding will likely be more symbolic than practically important. It’s likely that none of the three Texas cases will be a true blockbuster of the kind that gets cited by future generations.