As most readers are surely aware, the U.S. Supreme Court recently issued rulings on three unusually high-profile, controversial, and consequential cases: Fisher v University of Texas, which challenged UT Austin’s admissions criteria; United States v Texas, which challenged Barack Obama’s 2014 executive action on illegal immigration; and Whole Women’s Health v Hellerstedt, which challenged the 2013 Texas law that established several new restrictions on the state’s abortion providers.
Texas Monthly has covered the events that culminated in these rulings, and having been on the road last week, my comments on the rulings themselves are belated. Still, with apologies for the delay, I’d like to offer three quick observations.
First, all three cases involve hot-button political issues—affirmative action, illegal immigration, and abortion—and so it’s unsurprising that all three rulings were met with strong reactions from partisans on both sides. But it’s a shame that these cases have become so politicized. All three of these rulings are significantly more narrow in scope than either side is imagining. In Fisher for example, the Court upheld the UT Austin policy that allows for an applicant’s race to be considered as a factor in undergraduate admissions; Democrats applauded the ruling, and Republicans decried it. But the ruling wasn’t an endorsement of race-based affirmative action in general; it was specific to UT Austin’s admissions policies, which are idiosyncratic, largely thanks to one of the most elegant and inspired ideas to ever emerge from the Texas Legislature, “the top ten percent rule.” And, for what it’s worth, all three rulings struck me—not a constitutional law expert, but someone who has covered all three issues for years—as soundly reasoned. For more context on why, here’s my comment on Fisher, from December, and on United States v Texas, from April; and my colleague Dan Solomon’s take on the Whole Women’s Health ruling, from Monday.
Second, these rulings are a reminder that process matters. Public opinion on Whole Women’s Health and United States v Texas, in particular, has been largely fueled by perceptions of the intentions that motivated the Legislature, in the first case, and Barack Obama, in the second. Such considerations wouldn’t have shaped either ruling—in theory, at least—but they have shaped the political debate over both cases, and explain why the reaction to these rulings was heavily polarized along partisan lines. And those perceptions are likely to persist; if so, they may shape how partisans proceed going forward. That’s unfortunate.
So, for what it’s worth, I’d encourage Texas’s pro-life Republicans to consider that although they still have the numbers to ram abortion restrictions through the Legislature during special sessions, they might be better advised to avoid doing so, because the optics on that kind of thing are bound to elicit legitimate complaints. Those of you who remember watching Wendy Davis’s filibuster in 2013 may recall that she spent some hours reading testimony submitted by Texans who had been unable to testify at the truncated committee hearings on the bill. That was, to me, the most powerful stretch of the filibuster: I tend to be agnostic about abortion restrictions, as it happens, but I strongly believe that our elected officials should treat my fellow Texans with respect, even if they disagree on the issue at hand. And the most effective pro-life Republicans in Texas, going forward, will be those who do so.
And I’d ask Democrats to consider two pieces of context that strike me as key to understanding the state’s case in United States v Texas. The first is that Donald Trump is still the presumptive Republican presidential nominee. The second, as I mentioned in April, is that Obama issued two executive orders extending legal protections to illegal immigration, 2012’s DACA, and 2014’s DAPA (the latter, unhelpfully, included an expansion of DACA commonly referred to as DACA-plus.) The state has consistently maintained that its objection has to do with the constitutional limits on a president’s power, not the administration’s priorities when it comes to enforcing federal immigration laws that Congress has already passed. The fact that Texas didn’t sue the federal government over the 2012 order makes that claim a lot more plausible. And, for the millions of Texans who care about the issue, that’s auspicious. Republicans have ferociously opposed Obama’s executive orders related to illegal immigration. That doesn’t mean they would all be similarly ferocious if Congress decides to revisit the issue of comprehensive immigration reform next year.
Third, if you agree that these rulings were soundly reasoned, the trio serves as a reassuring reminder that the Supreme Court can still function, even though it remains short-handed as a result of Antonin Scalia’s death. But they are also a reminder that the Supreme Court is still short-handed, thanks to what can only be described as willfully obtuse intransigence on the part of Senate Republican leaders who are still refusing to hold confirmation hearings for Obama’s nominee, Merrick Garland. In some hypothetical circumstances, their stonewalling might be politically shrewd or ethically defensible. In the actual circumstances that they are inexplicably refusing to acknowledge, it’s inane.
Given Trump’s ignorance, there’s a slim possibility that he might accidentally nominate a conservative justice to the Supreme Court if elected president. “Now if we had Scalia living or if Scalia was replaced by me, you wouldn’t have had that,” he said today, in his first comment on Whole Women’s Health, having failed to realize that the ruling was 5-3, meaning that if Scalia was still alive it would have been 5-4. But the idea that Trump is sincerely committed to appointing conservative Supreme Court justices is delusional. And the idea that he’d even be in a position to do so is, according to all recent polling, increasingly unlikely. So, unless Mitch McConnell is quietly holding out for Scalia to be replaced by whatever leftist 40 year old that Hillary Clinton might appoint, Senate Republicans ought to accept that Obama ably outfoxed them on this one, and give Garland, his highly qualified nominee, the chance to serve on the Supreme Court—a chance he deserves, and that they don’t.