How Magical Thinking Becomes Legal Reasoning

With this SCOTUS, the GOP can roll back liberal achievements using make-believe.

I hope you had a restful day off. You’re going to need to it.

On today’s agenda is the decision last week by the US Supreme Court to refuse hearing an appeal to a lower court ruling that the Trump administration cannot prevent immigrants from applying for asylum if they did not use the right “port of entry.”

Refusing to hear the appeal was a good decision morally (it’s the right thing to do to offer safe haven to the world’s tired, poor and huddled masses) and politically (the high court looks impartial and fair), but also legally. The asylum statute is crystal clear.

Immigrants may apply for asylum no matter how they get here. “Any alien who is physically present in the US or who arrives in the US (whether or not at a designated port of arrival ...), irrespective of such alien’s status, may apply for asylum” (my italics).

The court’s decision was 5-4 with Chief Justice John Roberts joining the court’s four liberals. The plaintiff had requested that it stay the lower court’s injunction. That means that the plaintiff wanted the high court to allow the Trump administration to continue denying asylum requests while the appeal worked its way through the courts.

Put another way, even as it was abundantly clear that the Trump administration was breaking federal law, four Supreme Court justices, including the newest, Brett Kavanaugh, were willing to defer to the authority of a Republican president even if doing so meant he’d violate the will of Congress, compromise the exercise of checks and balances, and disrespect, at the very least, the principle of popular sovereignty.

Stephen Legomsky, a professor of law at Washington University in St. Louis, was right in saying that it was no surprise that five justices refused to hear the appeal. The asylum statute, after all, is so exceptionally clear that there’s little room for judicial interpretation. The only surprise, Legomsky told the Times, was that the decision was not unanimous. “Four justices were willing to stay the injunction,” he said.

This, to me, is part of a larger story I have been telling here at the Editorial Board. Since the confirmation of Brett Kavanaugh, the US Supreme Court has ceased being a friend to the liberal cause. (Indeed, it was a fair-weather friend.) Liberals must stop presuming the court will be the final stop in the fight for justice; that five conservative justices will base their decisions exclusively on law, precedent and judicial reasoning. If that were the case, all nine justices, liberal and conservative, would have laughed out of court the Department of Justice’s request to stay the lower court’s injunction.

To the contrary, four justices suggested that the law is subordinate to GOP power, and that if the case ever gets to the Supreme Court, that’s precisely how they’d rule. The only thing that stopped them was a very conservative chief justice who appears to be very concerned about the court’s credibility. So he sided with the liberals—for now.

Last week, I mentioned that a federal judge in Texas had issued a “sham decision” in ruling that the entire Affordable Care Act is unconstitutional. I said it was “likely to be overturned by the Supreme Court.” Then I read Brian Highsmith’s persuasive piece in the Washington Monthly, and was reminded that I haven’t learned my own lessons.

Many Democrats, not unreasonably, believe the Supreme Court would not strike down Medicare for All (presuming they passed such a law). After all, Medicare lives on. But, as Highsmith reminds us, magical thinking can turn real fast: “a legal argument, no matter how unsound it may seem, is not ‘frivolous’ when it has the unified support of the political party whose appointees make up a majority of the Supreme Court.”

How? By deploying what Highsmith has called “partisan constitutionalism.”

One, unify behind a novel theory. Unicorns are real, say (this is my example, not Highsmith’s). If the entire GOP believes unicorns are real, that means claiming that unicorns are real is, by default, a mainstream position. With party unity, the Republicans take the second step: signal that a ruling deciding that unicorns are real is imperative to the interests of the Republican Party but not detrimental to the public. This is probably best communicated to judges by way of red-state attorneys general, who are most sensitive to party views and interests. Third, connect the party’s interests to a public principle, something like individual liberty. Highsmith said:

The playbook could well be successful this time around, particularly if Donald Trump gets to make another Supreme Court appointment between now and the time this challenge advances to that stage. And even if the current lawsuit does ultimately fall short, future party-supported challenges to other progressive priorities are going to be successful.

Highsmith is right to stress that with this court, there isn’t much stopping the Republican Party from not only halting the advance of liberalism but rolling back what liberals have achieved. Liberals must debate ways to combat this. (Highsmith has some great suggestions.) But first, they must realize what they are facing, and why.

—John Stoehr


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—JS