The Passing of Justice Ginsburg Throws Election Into (Further) Turmoil, with Immigration Implications

'All procedural arguments are insincere, including this one'

By Andrew R. Arthur on September 22, 2020

On Friday night, the Supreme Court announced the passing of Justice Ruth Bader Ginsburg at the age of 87. Her death threw an already contentious election into even more turmoil. The ultimate confirmation of her successor will likely have serious consequences for the Supreme Court, generally, and immigration litigation, specifically, for decades to come.

That Justice Ginsburg was a towering legal figure requires no citation. She served more than 40 years as a judge and a justice — first on the nation's second-most powerful court, the U.S. Court of Appeals for the District of Columbia, and for the last 27 years in the Supreme Court's Marble Palace facing the U.S. Capitol across First Street, Northeast, in Washington, D.C.

Encomia quickly poured in across the media for the justice, mixed almost instantaneously with political opinions on how her death would, as noted, shape the political campaign. On a strictly personal level, those latter comments seemed base and inapt, and as you listened to them in real time, you could hear that even (most of) the commenters themselves sensed the tension between the unseemly nature of, but necessity for, such discourse.

But national political campaigns have a way of turning the personal into the political, and that is truer this year than most — again a statement that requires no citation. That said, the oversize power that we, as Americans, have ceded to the judiciary is a major factor in the confirmation battle ahead.

Federalist Number 78 dealt with the judicial branch. Hamilton therein described the judiciary as the "weakest" of the three branches, and "the least dangerous to the political rights of the Constitution." Why? He explained:

The judiciary ... has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

In an ideal world, that would be true, but his words seem both quaint and naïve (not words one usually uses to describe the first Treasury secretary). What happened?

Power, like nature, abhors a vacuum, and in 1803, in Marbury v. Madison, Chief Justice Marshall put down the court's marker on its authority. He held: "It is emphatically the duty of the Judicial Department to say what the law is." That decision, coupled with our tradition (with one notable exception) of the executive carrying out the holdings of the federal courts — including those it disagrees with, or that actually confound its efforts — gave the courts power Hamilton likely never envisioned.

Judges will, of course, disclaim that they hold any power beyond that Hamilton discussed, or that their own personal preferences enter into their decisions. As I noted in a February 2018 post, a few years back, then-Judge Neil Gorsuch lauded the "cold neutrality of an impartial judge", and somewhat modestly stated that: "Ours is a judiciary of honest black polyester."

The courts, however, have themselves become a political battlefield, and nowhere is that more true than in the field of immigration. For decades, courts acceded to the "plenary power" of the elected branches as it related to the subject, and largely steered clear of overruling the authority of the legislative and executive branches to set rules for the admission, expulsion, and deportation of aliens.

That has shifted, as the Fourth Circuit recently decried in a decision I analyzed in August. In Casa de Maryland v. Trump, which involved the so-called "public charge" rule, Judge J. Harvie Wilkinson III, writing for the majority, offered his two cents:

Immigration policy concerns not only the physical security of the country, but also the character and identity of the nation. Federal judges, drawn from one profession and lacking even a patina of democratic sanction, are ill-suited to supervise these issues and the difficult balances that inhere in them. Accordingly, we should be reluctant to disturb the authority expressly delegated to executive officials by Congress in this field.

He continued, criticizing the position taken in a contrary Seventh Circuit case (and by the dissent in that decision):

At bottom, [the Seventh C]ircuit's and dissenting colleague's claim of statutory unreasonableness is really a claim of policy unreasonableness, designed to position the courts as singular arbiters in a field for which their expertise is limited and their democratic imprimatur is non-existent.

In combination, these drawbacks confirm every fear that the judiciary is on its way to projecting a major voice in a field of law that has long been reserved to the politically accountable branches the Founders established in Articles I and II. [Emphasis added.]

If only all of the judges at the federal level were so modest and circumspect, judicial appointments would not be an issue. As recent decisions have shown, however, this is not the case.

More and more, proponents of various policies across the political spectrum have looked to specific judges and justices as champions for their causes — again, nothing Hamilton could ever have imagined. The late Justices Ginsburg and Scalia are likely the most prominent of these of late (a status both likely would have eschewed), best demonstrated by the number of articles (and at least one opera) that have noted the close personal friendship the two shared, despite their ideological differences.

That said, the exaltation of justices is not that new a concept in this country. Statues of Chief Justice Roger Taney were erected in places of prominence in both Baltimore and Annapolis (Maryland's state capital — Taney was a native son). There is also a (decommissioned) U.S Coast Guard Cutter named for him — the last surviving ship from Pearl Harbor — which is "a National Historic Landmark ... anchored in Baltimore's Inner Harbor."

Both statues were removed in August 2017 (the ship is still there), because Taney wrote what is likely one of the earliest examples of a results-oriented judicial opinion — the odious Dred Scott v. Sandford. He held therein (supported by, respectfully, poor reasoning) that descendants of Africans, free or not, were not U.S. citizens and had no right to sue in federal court, setting the stage for the Civil War.

Or take the still-venerated Justice Oliver Wendell Holmes, Jr. Recently, there have been complaints resulting from allegations that women in ICE detention at a contract facility in Georgia have undergone hysterectomies without their consent (an ongoing investigation that DHS has taken seriously). Many of those complaints have referenced to "a dark time in U.S. history in which 32 states passed eugenic-sterilization laws, resulting in the sterilization of between 60 and 70 thousand people in the early 1900s."

Largely lost in that discussion is the fact that Holmes himself wrote the decision that gave legal imprimatur to the practice: Buck v. Bell. And he did so in rather unkindly terms: "The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. ... Three generations of imbeciles are enough." (Emphasis added.)

Or take the (almost as) equally esteemed Justice Hugo Black, whom the National Constitution Center describes as an "unabashed partisan for the Constitution". That center's webpage on the justice largely elides his "past membership in the" Ku Klux Klan. It notes:

In an interview with the New York Times, held confidential until his death, Black said the "main reason" he joined the Klan was to earn "an even chance" with juries in his private career: "I was trying a lot of cases against corporations, jury cases, and I found out that all the corporation lawyers were in the Klan. A lot of the jurors were too, so I figured I'd better be even-up."

I argued at least a thousand cases, and would prefer to allow my legal points to rise and fall on their merits, thank you.

Did I mention that Justice Black also authored Korematsu v. U.S., which allowed for the internment of U.S. citizens of Japanese descent in World War II? The Supreme Court (upholding President Trump's travel restrictions) went so far as to call that displacement "morally repugnant".

I am in no way linking Justice Ginsburg (let alone Justice Scalia) to Dred Scott, Bell, or Korematsu. But the judgment of history is not always kind to Supreme Court opinions that, when issued, were celebrated, nor to their authors. And the fact that judges and justices have received plaudits for their decisions — or dissents (particularly of late) —simply underscores the fact that the "weakest" branch has become much stronger than the founders ever envisioned.

As well as more political. Even Chief Justice Marshall would likely object.

Hence, the debates that have broken out as to whether the president should name a replacement for Justice Ginsburg before the election — and whether the Senate should confirm any nominee the president names.

The president has stated that he will name a nominee to replace Justice Ginsburg within the week, and Senate Majority Leader Mitch McConnell (R-Ky.) has vowed to move a nomination forward. Of course, McConnell blocked then-President Obama's nomination of Judge Merrick Garland to the Supreme Court until after the 2016 election, despite the fact that Democrats at the time said the nomination should move forward.

Democrats (including former President Obama) are now crying foul. Obama has stated:

A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what's convenient or advantageous in the moment. The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle. As votes are already being cast in this election, Republican Senators are now called to apply that standard.

In a different context, Michael Barone noted: "All procedural arguments are insincere, including this one." This statement, in my experience, applies to almost all disagreements about a process that is otherwise legal, and one that is definitely true in this instance. Both with respect to Judge Garland, and the nominee justice to be named on Friday or Saturday, the only issue is power (and will), and were the parties reversed, the arguments would be, too.

That said, public opinion may favor McConnell. According to CNN:

Americans writ large might be okay with McConnell moving ahead now, despite the hypocrisy. In a Marquette University poll conducted in the days before Ginsburg died majorities of Republicans and Democrats said the Senate should conduct hearings and a vote on a Trump nominee. Just about a third of those polled said hearings should not be held.

Of course, many of the respondents to that poll may not be familiar with how Washington really works:

More than three quarters of those surveyed (78%) said a Senator voting against a Court nominee because of the political party of the president who appointed them is not justified. And a majority said a nominee should not be opposed because of their views on political issues.

Then there is the argument that there is not enough time for the confirmation process before the election (yet another procedural argument), alluded to by Obama above. The average length of time between nomination and confirmation since 1975 has been 70.8 days, although then-Judge Ginsburg's nomination was only pending for 42 days before she was confirmed.

Note, however, lengthy confirmations have not always been the rule. Justice Holmes was confirmed just four days after he was nominated by President Theodore Roosevelt. And then-Deputy Attorney General Byron "Whizzer" White was nominated by President John F. Kennedy in March 1962, and confirmed the next month (after a "remarkably brief" and fawning confirmation hearing before the Senate Judiciary Committee).

Of course, such collegiality was turned on its head by the attempted confirmation of Judge Robert Bork to the Supreme Court (by President Ronald Reagan) in 1987. Tom Goldstein, the publisher of SCOTUSblog (which apprises its readers of the goings-on at the Court) noted:

The nomination changed everything, maybe forever. ... Republicans nominated this brilliant guy to move the law in this dramatically more conservative direction. Liberal groups turned around and blocked him precisely because of those views. Their fight legitimized scorched-earth ideological wars over nominations at the Supreme Court, and to this day both sides remain completely convinced they were right.

With the death of Justice Ginsburg, five of the current justices were nominated by Republican presidents, and three by Democratic ones. Even with the late makeup of the Court, there was one surprising immigration decision in the last term that went against the administration on a five-to-four vote (DACA rescission) and two that went in the administration's favor by the same count (on expedited removal and the "stop-time" rule for cancellation of removal).

A decision that allowed the State of Kansas to prosecute aliens under state law for fraudulently using other people's Social Security numbers on state and federal tax-withholding forms was also decided five-to-four, as was a non-immigration decision that had implications for border security, finding no remedy for a Mexican national injured in a cross-border shooting (in a case about which my colleague Dan Cadman had written).

There have been questions raised about the conservative bona fides of certain of the five Republican-appointed justices (two immigration cases went against the government on seven-to-two votes, one on judicial review of Convention Against Torture claims and one on judicial review for criminal aliens, both of which I believe were wrongly decided). That said, the appointment of a conservative jurist to the Court to replace the liberal Justice Ginsburg could well shift the balance on immigration questions for decades to come.

The two purported front-runners, Amy Coney Barrett and Barbara Lagoa, are 48 and 52, respectively, and justices have lifetime tenure. Each could serve into their eighties (as Justice Ginsburg did), and the five current Republican appointees (Justice Thomas, Justice Alito, Chief Justice Roberts, Justice Gorsuch, and Justice Kavanaugh) are 72, 70, 65, 53, and 55 (respectively). None of the five has given any suggestion that they will retire anytime soon. Justice Holmes was 90 when he retired.

There are still a lot of questions — including whether McConnell will have the votes needed for confirmation. Any potential appointee will likely have their lives turned upside down in the interim. Along with the rest of the populace, and the body politic itself. The procedural arguments have just begun.