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OPED: Immigration case ratchets up Supreme Court drama

Tribune News Service
In this Jan. 15, 2016, file photo, members of CASA de Maryland participate in a immigration rally outside the Supreme Court in Washington. By agreeing to hear a challenge to Obama’s immigration plan, the Supreme Court on Tuesday, Jan. 18, 2016, raised hopes that Obama may have one last chance to make good on an unfulfilled promise to millions of immigrants, many of whom feel abandoned by his administration’s recent deportation raids. (AP Photo/Susan Walsh, File)

We now have our major Supreme Court story of the year: The justices will review the constitutionality of President Barack Obama's plan to defer deportations, stalled by the U.S. Court of Appeals for the 5th Circuit. The court's decision to take the case, United States v. Texas, ensures major drama around the oral argument in April, and fevered anticipation in the run up to the announcement of the court's decision sometime in late June.

The dramatic pattern produced by the hearing of a hugely significant case is starting to seem normal for the court. The Affordable Care Act, the Voting Rights Act, gay marriage and now immigration have each guaranteed — and merited — tremendous public attention.

As a professor of constitutional law who also writes about the court in this column, I can hardly complain. It's all good for business. But it's worth pausing with a moment's nostalgia for the days when many Supreme Court terms were in fact very boring, with almost no cases decided that would interest the public.

My proposed moment of silence for the boring court term has a point. It should lead us to ask whether the Supreme Court was correct to take the immigration case, as the Obama administration urged it to do.

My instinctive answer is that the court shouldn't have granted certiorari. This was a missed opportunity for the court to employ what the late, great constitutional scholar Alexander Bickel called the "passive virtues" — deciding not to decide, and thus preserving the institutional legitimacy of the court rather than plunging it into a political fight without creating useful legal precedent.

On the surface, this must seem like a hard choice to make. In its petition to the Supreme Court, the solicitor general's office said that the Court of Appeals "committed manifold and significant errors in affirming the unprecedented nationwide injunction barring implementation of an important federal policy affecting ... parents and children."

But ordinarily, the Supreme Court doesn't see the correction of error by the lower courts as sufficient reason to hear a case, even if that error affects children, like those who would be allowed to stay in the country under Obama's announced policy. Typically, the court wants to see a split between different courts of appeals or state supreme courts on questions of legal importance.

What would've happened if the court hadn't taken the case? In the roughly six months between the end of June when the case will be decided and the end of January when Obama leaves office, the executive action would've remained frozen.

Then, either a Republican president would reverse the action, meaning that nothing would change, or a Democratic president would renew the plan, as Hillary Clinton has suggested she would do. In that scenario, the court would have little choice but to take the case. The upshot would've been a six-month delay.

By taking the case now, the court might be producing a decision that would have effect for just six months. That's not the end of the world, taken on its own terms.

But the court's decision is guaranteed to be announced in the heat of a highly contentious presidential campaign in which immigration is already a major topic.

The justices are capable of trying to keep politics out of their decisions. But the public isn't capable of ripping judicial decisions out of their electoral context. A decision during the next presidential term would've come under far less intense political pressure.

Sure, justice delayed is sometimes justice denied. But not always, at least not in the case of the Supreme Court. It would've been nice for the public to spend this June a little less focused on the court, and a little more focused on the presidential election and the future of the country.

Noah Feldman is a Bloomberg View columnist. Readers may send him email at