Dem
51
GOP
49
In the past few days, the Supreme Court has not exactly been ruling like a body with a solid 6-3 conservative majority, uncorking a couple of big decisions that will definitely not please right-wingers across the nation.
To start, the Court announced on Friday that it was overturning U.S. District Judge Drew Tipton, and allowing the Biden administration to enforce border policy as it sees fit. This was a rather big deal, and did not get as much attention as it probably should have, presumably because the news was announced right before the weekend.
At the heart of the case is what's called "enforcement discretion." Those not familiar with the term can presumably figure out the meaning without our help, but just to be safe, there are roughly 11 million undocumented immigrants in the U.S., and Congress—for all the carping about undocumented immigrants by some members—has allocated enough money to track down and eject about 400,000 of those 11 million. The Biden administration took what is, as far as we can see, the only reasonable approach, and chose to focus on the most problematic undocumented immigrants (gang members, convicted felons, drug traffickers, Canadians, etc.). The state attorneys general of Texas (Ken Paxton) and Louisiana (Jeff Landry), ultimately joined by 21 other red-state AGs, filed suit, saying they wanted "a wide swath" of undocumented immigrants to be arrested. Better to take the time and energy to eject some 85-year-old abuelita than to track down a serial rapist, it would seem. Judge Tipton is a staunch xenophobe and is also the only judge who sits in Victoria, TX. So, the now-impeached Paxton brought the suit in Victoria, and guess what? Tipton got the case and ruled in the plaintiffs' favor, imposing a national injunction on the Department of Homeland Security.
Now, however, Tipton's ruling is vacated, and by a vote of 8-1, no less (Samuel Alito being the one, incidentally). Why the Supreme Court allowed the injunction to stay in place for a full year, when the issues in play were apparently pretty clear, is anyone's guess. In any event, the ruling not only dealt right-wing AGs a defeat in this particular case, it also pointed toward two additional problems that may soon be on those AGs' doorstep. First, the basis for the Supremes' ruling was that the AGs had no standing to bring the case, and it should never have been heard in the first place. There are numerous other cases in the pipeline that involve red states trying to override the federal government's enforcement discretion; those will presumably soon be kicked, too.
Second, in a concurrence, three of the conservatives (Amy Coney Barrett, Neil Gorsuch and Clarence Thomas) expressed skepticism about this whole "national injunction" business, and hinted that they are open to taking that power away from lower-level judges. If a couple of the liberals feel similarly, then a power that has been used rather casually by Tipton and other judges of his ilk might be taken away. That said, the liberals might or might not agree with their conservative colleagues; after all, sometimes lefty judges impose national injunctions, too.
The Texas case was not the only one to produce a result other than the one that conservatives wanted, either. On Monday, SCOTUS announced that it was lifting a hold it had placed on a lower-court decision in Louisiana, and that the lower court's decision would be allowed to stand. What that decision says is that the current Louisiana maps are an unfair racial gerrymander, and that the state has to redraw to create an additional majority-Black district. This is consistent with the Court's recent decision regarding Alabama's maps, in which it said the same thing. This means that the Democrats are likely to flip two seats in the House, just on this basis. Three more flips, and House Minority Leader Hakeem Jeffries (D-NY) becomes speaker.
So that is two pretty big wins for the left, we'd say. Of course, it's possible that the Supremes are just buttering the American people up, so that some staunch right-wing decisions will go down a little easier. There's still plenty of opportunity for the Court to put a right-wing stamp on this term. Among the questions that will get answers in the next week or so:
Our guess is that the answer to each of these questions will be "no." If so, that would be three decisions that would go in a conservative direction (the first three) and two that would not (the latter two). We'll see very soon. (Z)