Today the Supreme Court announced three decisions, two of which split 4-4, and proved once again why having eight justices on the court is not simply unsustainable, but a reckless and irresponsible danger to American democracy. While multiple cases since the vacancy opened have split 4-4, today’s immigration case–United States v. Texas–is an especially potent reminder that, for a variety of reasons, we need a fully-functioning, fully-staffed Supreme Court.
In United States v. Texas, the court was tasked with deciding the fate of Obama’s 2014 immigration actions, including his expansion of the Deferred Action for Childhood Arrivals (DACA) program and creation of the Deferred Action for Parental Accountability (DAPA) program. Both programs exist to grant temporary reprieve for certain categories of undocumented immigrants, including those who were brought to the United States as children and those who have children who are U.S. citizens. Under both programs, young people have a lot at stake: DACA exclusively applies to young undocumented people, and DAPA could keep together the families of millions of young people. When a legal challenge to expanded DACA and DAPA arose, millions of people’s fate hung in the balance, and millions of dollars, too: research shows that the U.S. loses $29.9 million in GDP every day that expanded DACA and DAPA are put on hold.
Today, those lives are still on hold. After a years-long battle to reach the Supreme Court, the justices split 4-4, meaning the lower court decision putting immigration reform on hold stands–but only for its jurisdiction. When the Supreme Court splits, it cannot set national precedent. With eight justices, the final arbiter of justice is not so final.
Though multiple Supreme Court cases have, in similar fashion, split 4-4 since the vacancy opened, United States v. Texas is particularly illustrative of the need for a ninth justice.
First, it covers immigration, a widely contentious issue that Congress has failed to adequately address because of its partisanship-induced gridlock. The Supreme Court, meanwhile, is an independent, un-elected body, and therefore able to address controversial issues like immigration when Congress cannot.
Second, United States v. Texas demonstrates the need for a cohesive, national framework of law. While the constitution delineates some powers to the states and others to the federal government, the Supreme Court is meant to act as an arbiter to ensure that certain national standards remain in place. That’s why the Court often takes on cases that have faced different outcomes in different circuit courts throughout the country: because, at the end of the day, the country needs a baseline standard of law to operate within.
Third, the case has an out-sized impact on two minority populations that lack representation in traditional channels: young people and undocumented immigrants. The needs and voices of young people are often lacking in state and local government simply because young people are less likely to hold office. Undocumented immigrants, meanwhile, not only cannot hold office, but cannot so much as vote for those who hold office. Thus, elected officials do not feel the heft of their political voice. Again owing to its structure as an independent and un-elected institution, the Supreme Court has the unique ability to listen to and serve the interests of minority groups like young people and undocumented immigrants. Throughout history, the court has waffled in its embrace of this role, but the fact remains that it is a viable channel for minority representation.
These functions–the ability to address the issues Congress cannot, and the ability to hear voices Congress cannot–are vital to the health of our democracy. And yet, with just eight justices, the Supreme Court is unable to fulfill the unique role in our democracy our forefathers intended. Today’s case shows that, more than ever, we need to uphold the Supreme Court by giving Chief Judge Merrick Garland a confirmation hearing, because when we uphold the Supreme Court, it upholds our democracy.