If the Senate were to refuse to even hold a hearing to consider a Supreme Court nominee, especially in an election year? That’s a whole new ballgame. The vacancy, and the court's 4-4 ideological split, would likely persist across two Supreme Court terms, months into 2017. Such an extended vacancy would be unprecedented. And the fact that some senators are resolved to maintaining this situation is irresponsible.
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Senate Majority Leader Mitch McConnell's (R-Ky.) immediate reaction on Saturday to the news of the death of Supreme Court Justice Antonin Scalia was a knee jerk, hyper-partisan announcement, an obstructionist claim that the Senate should not act on any nominee submitted by President Obama but instead should leave the Court short-handed for at least a year. According to McConnell, "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President."
Now that the Supreme Court has decided to hear the case, it should reaffirm its recognition of the broad discretion enjoyed by the executive branch when it comes to enforcing the nation’s immigration laws and permit the executive branch to exercise that discretion here. If it does, many people will have cause to celebrate when the Court announces its ruling – proponents of the rule of law and a well-functioning government, supporters of the president’s executive action, and, most important, the millions of children and their parents who may benefit from the president’s action.
Public figures like Hillary Clinton should use the 150th anniversary of this Second Founding to draw attention to the constitutional achievements of Stevens, Bingham, and their generation. While Reconstruction fell short of its full promise, its leaders deserve to be remembered alongside America’s long line of visionary reformers—from James Madison and Alexander Hamilton to Susan B. Anthony and Elizabeth Cady Stanton to Martin Luther King, Jr. and Lyndon Baines Johnson. And the period itself, though turbulent and violent, should be remembered for what it was—a Second Founding for our nation.
Today marks the 201st birthday of John Bingham. Although forgotten by most Americans, Bingham is one of the most important figures in American constitutional history. Indeed, Justice Hugo Black called him the “Madison . . . of the Fourteenth Amendment.” And so he was.
If the Court takes, as its lodestar for evaluating DAPA, the plan manifest over decades of legislating and administering the immigration laws, it is unlikely that votes will be found to invalidate it—in the (also unlikely) event that a majority will grant standing and reach the merits of Texas’ case.
There are limits to executive power, of course. As the Supreme Court has recognized, the executive branch cannot simply “abdicate” its responsibility to enforce the law. And as a society, we should remain ever watchful to make sure no presidential actions disrupt the balance of powers. But so far, President Obama’s executive actions don’t come anywhere close to doing so.
The Supreme Court will likely hand down its decision in Whole Woman’s Health on one of the last days of June 2016, a matter of weeks after the 150th anniversary of the passage of the Fourteenth Amendment in Congress. If Justice Kennedy and Justice Ginsburg once again join forces in reaffirming the amendment’s protection of equal liberty, dignity, and autonomy, there will be quite a lot to celebrate.
As Roberts rings in 2016, he’ll likely be thinking about the very important case the court will be hearing early in the New Year. Let’s hope that he’s also thinking about the resolutions he made when he joined the court and what the consequences would be — for the country, for the court, and for his own legacy — if he doesn’t keep them.
As this morning’s argument showed, this case has now become a vehicle for the Court’s conservatives justices to second-guess the university’s well-founded judgment that the sensitive use of race helps to ensure a diverse student body, provide pathways to leadership, and break down stereotypes that stand in the way of equality for all.