As a result, the court has been absent a critical, tie-breaking vote. With stakes as high as they’ve ever been, the rulings of the Supreme Court have taken on particular urgency—as on Thursday morning, with major cases on affirmative action and immigration. Without a ninth justice, tied decisions necessarily uphold the rulings of the lower court: in this case, the U.S. Court of Appeals for the Fifth Circuit.
The president said his administration will continue previously announced selective deportations, but would otherwise “abide” by the ruling of the Fifth Circuit. Nor, he confirmed, would the White House make any further attempts to amend immigration policy through executive privilege. In practical terms, a district judge has effectively determined national immigration policy. Such is the reality of an eight-seat court unable to establish uniform law.
At the very same time that this was unfolding, Democrats were staging the end of their 25-hour sit-in on the House floor, protesting inaction on gun-safety reform. It was an exercise in catharsis more than legislating, but one that was welcomed broadly by outside progressives, whose anger over Congressional impotence on the issue has reached fever pitch.
And yet, the dueling spectacles offered a pointed choice: Were the Democrats actually protesting in the wrong chamber?
As Chris Hayes tweeted:
It’s hard to fault House Democrats for making their exasperation known, but a better use of political capital might be a prolonged and extensive campaign against Republican intransigence on the judiciary—and not just the Supreme Court, by the way, but the lower courts, where Republicans are confirming judges at the slowest rate in over half a century, and where, as Thursday showed the country, the rubber meets the road.
Lately, mass killings have proved inflection points for the debate over guns: Each new massacre has added to the combustible mix of cultural division and political reality. These events are gruesome and wrenching, but they are also some of the only times when the nation’s attention is turned towards the ludicrous gulf that exists between public will and the interests of a powerful few.
No such inflection points have existed for something as cloaked and complicated as the judicial branch—until now. The absence of a ninth judge may ultimately result, as the president intoned, in “children being torn from their parents’ arms.” It will surely result in several million undocumented men and women losing protection from deportation and the opportunity to apply for a work permit. Immigration reform is an issue the Democrats care deeply about, and to a very significant degree, the country is in agreement with them. Here is the most powerful and public example yet of the extraordinary cost of judicial delay.