Show Notes
Greetings and welcome to the Highest Court Report, as always, I am your host Conor and thanks for joining us. Today, we are going to take a look at a recent dismissal of cases on the docket, or writ of cert, and some immigration reform that is mercifully on its way from the Biden administration. This is Episode 4, An Offer Refused.
On Tuesday Mar. 9, all of the parties to the case Department of Homeland Security v. New York, a lawsuit challenging a Trump-era policy targeting low-income immigrants, asked the Supreme Court to dismiss that case. The Court swiftly granted that request, removing from consideration one of the most contentious cases that the justices planned to hear this year.
This is the third time in just over a month that a major immigration case went up in smoke. In early February, the Court granted requests to remove two cases — Mayorkas v. Innovation Law Lab and Biden v. Sierra Club — from its argument calendar.
The Innovation Law Lab case challenged Trump’s “remain in Mexico” policy, which forced thousands of migrants who seek asylum in the United States to wait in Mexico while their cases were being processed; the Biden administration is unwinding this policy.
Sierra Club involved a challenge to Trump’s attempt to divert billions of dollars, appropriated for the military, to building a wall along the Mexican border. Biden signed a proclamation on his first day in office stating that “no more American taxpayer dollars [shall] be diverted to construct a border wall.”
The New York case, meanwhile, challenged the Trump administration’s “public charge” rule, which sought to prevent immigrants from entering the United States, extending their visa, or obtaining a green card if immigration officials determined a particular immigrant was likely to use public assistance programs such as food stamps or Medicaid.
Biden called for a formal review of this policy, and the Supreme Court’s decision to no longer hear the case should allow lower court orders blocking the policy in much of the country to take effect.
The Court’s decision to dismiss the New York case is not particularly surprising — it would be extraordinary for any court to hear a case that all parties agree should be dismissed — but it is likely to be an important victory for immigrants. Although several lower courts ruled against the public charge rule, the Supreme Court temporarily reinstated that rule in early 2020, voting 5-4 along party lines. And that was before the late Justice Ruth Bader Ginsburg’s replacement with Justice Amy Coney Barrett moved the Court further to the right.
Had the Court issued a final decision upholding the public charge rule, future presidents could have relied on that decision to reinstate the rule, even if the Biden administration abandons it.
Surprisingly, in this term at least, the Supreme Court has taken up far fewer cases than it normally does.
The anti-climactic resolutions of the New York, Innovation Law Labs, and Sierra Club cases are a reminder that elections have consequences: It is likely that the Supreme Court would have upheld all three policies if Trump were still in office. But the Court also planned to hear surprisingly few cases during its current term, even before the Biden administration asked it to start removing cases.
Each year, the Supreme Court begins a new term in October, and it typically finishes that term in the following June. Over the intervening months, the Court normally holds seven “sittings” — five- or six-day blocks where the justices will ordinarily hear two cases a day. Thus, in a regular sitting, the justices will hear 10-12 cases.
This term, however, the Court’s heard far fewer cases than usual. It heard only eight cases in its November sitting, five in its January sitting, and six in its February sitting. The justices plan to hear only seven cases in the March sitting.
There are a number of possible explanations for this unusually slow workload. The pandemic forced the justices to close their building to the public and hold oral arguments remotely, and the pandemic may have also slowed down lower courts, meaning that there are fewer decisions to appeal to the justices.
The Court’s membership has also changed significantly in recent years — President Trump appointed three justices during his four-year term — so the justices may want to spend some time getting comfortable with each other (and learning how their new colleagues are likely to vote in important cases) before filling their calendar up with new arguments.
And the justices may also feel like they are politically vulnerable, given that Congress and the White House are both controlled by Democrats who are quite aware of how the Court’s current 6-3 Republican majority came into being.
Shortly after Justice Antonin Scalia died in February of 2016, Senate Republicans refused to hold a confirmation hearing for President Obama’s Supreme Court nominee Merrick Garland — at the time, they claimed that the Senate should not confirm new justices during a presidential election year. But then, when Ginsburg died in September of 2020, Republicans abandoned this rule. Justice Barrett was confirmed just eight days before the 2020 election.
That led many Democrats to call for an aggressive response, such as adding additional seats to the nine-justice Court to dilute the votes of Trump’s justices. Senate Majority Leader Chuck Schumer has said that “nothing is off the table” when it comes to the Supreme Court.
So it’s also possible that the justices may be laying low, politically speaking at least, in order to discourage Democrats from expanding the Court.
That doesn’t mean that this term is a total sleeper. The justices still heard a case seeking to repeal the Affordable Care Act, a second case that could give religious conservatives a broad new right to discriminate against LGBTQ+ people, and a third case that could gut what remains of the Voting Rights Act. The Court is likely to hand down its decisions in those cases in June, perhaps later.
But, for whatever reason, this has turned out to be a somewhat quiet term thus far. There are a host of state court and appellate court dockets that are teeming with highly justiciable and politically driven cases, which indeed may find their way to the Highest Court. There has been conjecture that more and more Republican lawmakers at all levels will continue to challenge Biden policy, cabinet appointments, executive orders, etc.
After all, Rep. Marjorie Taylor Greene of QAnon lore, has attempted to adjourn the House’s session several times already, despite the fact that she has no committee assignments, and therefore, nothing to actually do with her time, other than create dissent throughout Congress. This doesn’t even consider that, despite the fact that Republican counties and states will be utilizing more COVID aid than Democratic lead states and counties, not a single GOP politician in Congress voted for the relief package. The House has passed or proposed over a dozen of legislation that a majority of Americans find important in their lives. Closing the Gun Show loophole, background check universality, prison and jail reform, police reform, voting rights protection, gerrymandering fixes, and all kinds of things. So considering Republican stances on things like right to vote, we can be sure that we have not heard the last on this from SCOTUS, not by a long shot.
Next episode, we are going to take a look at voting rights, and we will take a look at what both parties are fighting to do, in either expanding or reducing the amount of people that can vote. There is probably no question in anyone’s mind here, about who is trying to restrict the ability to vote. An Arizona state congressman from the GOP said that quiet part out loud. State Rep. John Kavanaugh stated that:
"Democrats value as many people as possible voting, and they're willing to risk fraud. Republicans are more concerned about fraud, so we don't mind putting security measures in that won't let everybody vote—but everybody shouldn't be voting.”
"Not everybody wants to vote and, if somebody is uninterested in voting, that probably means that they're totally uninformed on the issues. Quantity is important, but we have to look at the quality of votes as well." Looking good, Republican party, looking good.
Anyways, that is next episode everyone. Thank you very much for joining me again for the Highest Court Report. Stay safe out there. This is Conor, signing off.