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Immigration Case Deserves Another Day in the Supreme Court

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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The Obama administration has asked the Supreme Court to wait until it has nine justices and rehear U.S. v. Texas, the case in which a 4-4 court affirmed a lower court’s decision to block the president’s executive action on immigration. The effort is unlikely to succeed, because the court’s rules require a majority to grant rehearing, and right now the court doesn’t have one. But in a more logical world, the court would agree now to reconsider this extremely important case, which would grant temporary legal status to some 4 million people who entered the U.S. illegally, when it is at full strength. That it probably won’t shows just how dysfunctional an eight-justice court really is.
QuickTake U.S. Supreme Court

Start with reality: the Supreme Court almost never agrees to rehear cases after it has decided them. The main reason is the court’s rehearing rule, which says among other things that “a petition for rehearing … will not be granted except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision.”

Assuming a normal court with an odd number of justices, this means the only way the court can grant rehearing in a case is when a justice who voted in the majority changes his or her mind and wants to go the other way. Rehearing is most likely after a 5-to-4 decision, because that would only require one justice to flip, not more.

The rule is sensible enough when it comes to ordinary circumstances. The justices and the parties have almost always put in lots of time deciding whether to hear a case and ultimately reaching a decision. It would be a waste to rehear the great majority of cases after a vote. And the value of finality is served when everyone knows that a case is over when it’s over.

But that doesn’t make sense in 4-4 ties. According to the court’s own rules, a divided court can't overturn the decision below. In U.S. v. Texas, as in several other important cases this term, including the union dues case, Friedrichs v. California, the court issued a one-sentence opinion stating that the decision had been upheld by a divided court.

Such a ruling by tradition doesn’t set a precedent. But it’s not automatically a do-over, either. The case has actually been decided -- and the decision of the last court to have ruled on it controls the parties.

As the office of the solicitor general argues in its petition for rehearing, that’s particularly problematic in the immigration case. For one thing, the federal district court judge in Texas, who has since been feuding with the Obama administration, issued a preliminary injunction that bars the administration from implementing the executive order throughout the country -- not just in his jurisdiction. The U.S. Court of Appeals for the Fifth Circuit upheld that order, which remains in place as a result of the Supreme Court tie.

 It’s highly unusual for a district or circuit court to bind the federal government nationally. But at least four justices clearly don’t care, because the conservatives could have voted to lift the injunction if it had really bothered them.

The Justice Department’s other major reason for the court to grant rehearing is that the issue is not only important, but it is unlikely to come back to the Supreme Court in a future case -- since the program is blocked everywhere.

The problem with this argument is that the district court only issued a preliminary injunction, not a final decision. Technically, what’s now going to happen is that the district court will hold a trial and issue a final decision that will, presumably, once again go against the administration. (That is, unless the lower court delays until after the elections and Donald Trump wins. Then he’d kill the plan and the case would die with the retraction of the executive order.)

Once the Obama administration -- or more realistically, a future Hillary Clinton administration -- loses in the district court, it can go back to the Fifth Circuit, where it would probably lose again. And then the executive branch could ask the Supreme Court to take the case.

The fact that there is a path for the case to make it back to the justices -- well after the time when there should be a full complement of them -- is reason enough to deny the rehearing.

Yet the slowness of this process rankles. There should be a way for the justices to hold 4-4 ties for rehearing more expeditiously. In this instance, justice delayed could well be justice denied for individual undocumented immigrants.

The Justice Department had to go back to the 1930s and '40s to find examples of the court granting rehearing after affirmation by a divided court. In a perfect world, the justices would either grant rehearing now, or else hold the request for rehearing until the court has nine justices.

Since that’s unlikely to happen, once the court is back to normal, it should consider revising its rehearing rule to solve the 4-4 situation. And until then, the rest of us should remember that a court with eight justices isn’t good enough.

  1. My most wizard-like Supreme Court-procedure colleague speculated to me that even with Judge Merrick Garland added to the court, rehearing might be impossible under the rule because the four liberals in effect lost the tie, and so weren’t part of the “concurrence.” That would be perverse, since the tie is supposed to really be a tie. But the wizard may be right. In any case it would be up to the justices to interpret their own rule.

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

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