Who is playing politics?

November 25th, 2015

At the CAC Blog, Brianne Gorod writes that it would be “political” for the Court to not grant the SG’s request so the U.S. v. Texas could be heard this year.

So the Court can hear the case this Term, and it absolutely should. That’s true not only because the questions it presents are incredibly important, but also because the President’s program will remain blocked until the Supreme Court decides this case. Moreover, given the timing of the presidential election, it’s possible this case could be mooted with the program never having gone into effect and with the Supreme Court never having had an opportunity to weigh in. Indeed, if the Court doesn’t hear the case this Term, it may look like the Court is playing politics with the timing of the decision, trying to avoid yet another politically charged case on its docket (there are already quite a few) in an election season. If there’s one thing Chief Justice Roberts has made clear, on repeated occasions, it’s that he doesn’t want it to appear that the Court is a political body.     

But there is another way of looking at this situation. As Ilya and I explained in The Federalist, the Court could possibly avoid a significantly bigger political confrontation by following the “ordinary course” and allowing the case to be obviated by the election. On Twitter Chris Walker referred to this as “passive virtue.”

On the one hand the Court would affirmatively depart from the “ordinary course” because of the Solicitor General’s extraordinary request to hear this case before his Boss leaves office. On the other hand, the Court could passively do nothing, follow the ordinary course, and potentially avoid altogether the need to set a significant precedent in a compressed time.

We will soon find out what the Justices will do