Human frailties.

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Three Lessons From Obama's Immigration Defeat

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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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.

The Supreme Court’s opinion is exactly one sentence long: “The judgment is affirmed by an equally divided Court.” Nonetheless, three important lessons can be derived from it.

First, serendipity matters when it comes to Supreme Court opinions. The Senate didn’t block Garland's appointment just to affect the outcome of the Texas v. U.S. immigration case, yet that may turn out to be the most important impact of an eight-justice court. And of course it was random that Scalia died when he did. He wasn’t the oldest justice, nor necessarily the most unhealthy.

The fact that luck matters when it comes to the Supreme Court is a product of the fact that the justices are individual humans, subject to frailties and the vagaries of fate. Some of my academic colleagues -- many of them, in fact -- prefer to think of Supreme Court opinions as the product of broad social forces and popular movements.

Those forces and movements undoubtedly influence the justices. They don’t live in bubbles, whatever impression they may seek to convey. But the reality is that social forces are translated into judicial decision-making only through the individual acts of a tiny elite. That injects a large quantity of human variability into the system. Today’s tie is a reminder of the enormous importance of factors like the timing of appointment, timing of death, and timing of cases.

Soon -- this afternoon! -- academics will begin theorizing the result as a symbol of divided national opinion on immigration. That will be valid enough, provided you remember that if Scalia had lived, the same scholars would be saying the case demonstrated consensus against immigration, and if Garland had been appointed, they’d be saying it stood for the opposite result.

The second big lesson from today’s case is that during the Obama administration, we’ve entered the era where an apparently rogue local judge can influence national social policy to an extraordinary degree. The federal district judge in Texas who blocked Obama’s scheme at first seemed to be an outlier. Most constitutional law experts agreed that the president had near-plenary authority to enforce deportation according to his policy preference, as previous presidents including George W. Bush had done.

Yet after being upheld by the U.S. Court of Appeals for the Fifth Circuit, the national freeze acquired enough legal possibility to sway four justices.

We’ve seen this before in the Obama presidency, notably in the legal challenges to the Affordable Care Act. The libertarian argument that it’s beyond Congress’s authority to require people to buy health insurance on pain of a penalty also seemed like an extreme outlier when a lone federal district judge embraced it. That position, too, ended up with support on the Supreme Court. And if it hadn’t been for Chief Justice John Roberts finding a different way to uphold the mandatory coverage component, it would have sunk Obama’s first signature program.

The two cases concerning healthcare and immigration are bookends to a remarkable era of successful and near-successful judicial efforts to block Obama’s policies. Probably no president since Franklin Delano Roosevelt has been so affected by adverse judicial opinions; and Roosevelt served long enough that he was able to solve the problem by first threatening to pack the court, and then eventually nominating nine justices to it.

The third and final lesson is that in our constitutional system, politics is almost always the answer. It remains to be seen whether Hillary Clinton, if elected, would reinstate Obama’s immigration policy. If she is elected and places another liberal justice on the court, she could certainly do so with a high degree of confidence that she would win. And if Donald Trump is elected, the issue will be doubly moot, because he will retract the policy as well as (presumably) nominate a more conservative justice.

Naturally the court affects politics. Today’s decision means that Obama’s plan, when discussed during the presidential election, will take on the appearance of having been a loser in court. It’s technically correct that the plan has now been rejected by the lower courts and that their judgment has now been affirmed by the highest court in the land.

But the tied vote will also draw attention to how crucial the next election is for the future of the Supreme Court -- and how crucial the personnel of the court is to the future of the country.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Susan Warren at susanwarren@bloomberg.net