Noah Feldman, Columnist

Three Lessons From Obama's Immigration Defeat

The Supreme Court is deeply intertwined with politics, but timing still plays a crucial role.

June 23, 2016 at 5:09 PM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Human frailties.
Photographer: Pete Marovich/Getty Images

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There’s no question that President Barack Obama suffered a significant loss today when a deadlocked Supreme Court left in place a lower court freeze on his signature immigration reform. It’s also true that the Republican Senate played a major role in this defeat by refusing to confirm -- or even vote on -- Obama’s nominee, Judge Merrick Garland, who surely would have voted to lift the stay.

But it’s also worth remembering that Obama would have been defeated anyway if Justice Antonin Scalia had lived to vote against the reform, assuming the eight other justices split 4-4. And that would’ve been worse for the Democratic Party, because it almost certainly would have resulted in an opinion blocking such unilateral executive action in the future. Now, if Hillary Clinton is elected president, the issue can be revisited without a binding judicial precedent to preclude her from doing something similar.