Immigration tops caseload for High Court
Washington – — The Supreme Court’s decision to add immigration to its already robust list of politically charged cases means a raft of rulings in the late spring or early summer that could inject the court into the presidential campaign.
Cases involving abortion, affirmative action, labor unions and the Obama health care law have already given the high court’s term a campaign-season flavor.
A ruling on President Barack Obama’s authority to shield up to 5 million immigrants who are living in the United States illegally from deportation is expected to be one of the last cases argued in April and decided before the justices leave town in early summer.
The most politically contentious rulings probably will come in quick succession in the last half of June, as Democrats and Republicans ready for their political conventions.
The outcomes could feed campaign rhetoric that already has been heated on abortion and immigration, to name just two issues.
Adding to the potential for the court to be an issue in the campaign are the ages of the four oldest justices, three of whom will be past their 80th birthday when the next president takes office a year from now. A fourth, Justice Stephen Breyer, will be 78.
“The decisions the court makes in this potentially blockbuster term could affect who becomes president in the 2016 elections, and who becomes president in the 2016 elections could affect the Supreme Court for a generation,” said Richard Hasen, a law professor at the University of California at Irvine.
The replacement of even one justice could alter the direction of the court in a big way, given how closely divided it is now between four conservatives and four liberals — with Justice Anthony Kennedy often providing the crucial fifth vote.
The accumulation of wrenching social issues and pointed policy disputes at the Supreme Court at this moment is mostly a matter of chance. A legal fight over the regulation of abortion clinics in Texas has been underway for two and a half years. Obama’s immigration plan was rolled out 14 months ago and almost immediately challenged in court. Faith-based groups that say they are forced to be complicit in providing objectionable birth control to women covered under their health plans have been challenging the Obama administration for more than three years.
Republican candidates have criticized the court, and especially its decisions in support of same-sex marriage and the Obama health care overhaul. Republican Sen. Ted Cruz of Texas has said that putting Chief Justice John Roberts on the court was a mistake, even though Cruz endorsed his nomination in 2005. Both men served as law clerks to William Rehnquist. Cruz referred mainly to Roberts’ two opinions in defense of Obama’s health care overhaul. More recently, Republican rival Donald Trump has blamed Cruz for pushing to get Roberts on the court and called the chief justice “an absolute disaster.”
In the most recent Republican debate, Cruz called Justice Sonia Sotomayor a radical opponent of gun rights and Sen. Marco Rubio of Florida chastised New Jersey Gov. Chris Christie for his past support of Sotomayor’s nomination in 2009. Christie denied ever supporting the first Latina justice.
On the Democratic side, the talk has been tamer, with Hillary Clinton discussing the importance of high-court nominations on her social media accounts.
The court’s 2010 decision in Citizens United that led to a flood of what critics call “dark money” in political campaigns remains controversial, and Democratic candidates have pledged to try to undo it.
The attention on the court will only mount in the coming months, said UCLA law professor Adam Winkler. “It’s going to be hard for the court to stay out of the political thicket in this coming election,” Winkler said.
Yet evidence that the court itself has moved many votes in past elections is thin, said Sara Benesh, a political scientist at the University of Wisconsin-Milwaukee.
The court and the justices are little known to the public. “It seems to me a long, drawn-out relationship between any decision the court might make and any decision an individual might make in the voting booth,” Benesh said.
The justices go to great lengths to insist that they are not, in Breyer’s words, “nine junior-varsity politicians.” Winkler said there is little evidence that the court has ducked politically sensitive issues, although liberal critics have said the conservative justices reached out aggressively and unnecessarily in recent years in campaign finance, voting rights and union cases.
But politics is not completely absent from the justices’ chambers. When the court was weighing a major abortion case early in 1992, a law clerk to Justice Harry Blackmun urged him to press his colleagues to have the case heard and decided before the 1992 presidential election.
At the time, many abortion rights groups thought the Supreme Court was on the verge of overturning the Roe v. Wade ruling. If there were to be a majority on the court to jettison Roe, “it would be better to do it this year before the election and give women the opportunity to vote their outrage,” Blackmun clerk Molly McUsic wrote in a memo to the justice. Former New York Times reporter Linda Greenhouse recounted the episode in her biography of Blackmun, “Becoming Justice Blackmun.”
As it happened, the court heard the case, surprisingly reaffirmed abortion rights and Bill Clinton won the 1992 election.
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