Judicial Chaos is a Symptom. (Mostly) Asymmetrical Polarization is the Disease


On Tuesday, the Supreme Court declined to intervene in the aptly named Texas v. United States. The case involves a Texas law known as S. B. 4, which makes it a state crime for an undocumented immigrant to enter Texas, imposes severe penalties, authorizes state deportation to Mexico regardless of the nationality of the undocumented immigrant, and requires state court judges to proceed with state criminal and deportation measures even if the undocumented immigrant is in the midst of a federal proceeding (such as adjudication of an asylum claim) that could result in permission to remain in the country.

In light of the supremacy of federal law as declared by the Constitution and the primacy of the federal government with respect to immigration as recognized by the Supreme Court in the 2012 “show your papers” case of Arizona v. United States, a federal district judge issued a preliminary injunction against enforcement of S. B. 4. Texas then appealed to the U.S. Court of Appeals for the Fifth Circuit. Surprisingly, that court granted an “administrative stay” of the preliminary injunction—which would have allowed S. B. 4 to go into effect pending appeal, except that the Fifth Circuit also stayed its stay so that the U.S. and the allied private plaintiffs could seek review in the Supreme Court. When the high Court—over an impassioned dissent by Justice Sonia Sotomayor (joined by Justice Ketanji Brown Jackson) and another dissent by Justice Elena Kagan—issued its unexplained order on Tuesday, the Fifth Circuit administrative stay went into effect, thus allowing enforcement of S. B. 4.

At least for a few hours, that is. Later that night, by a 2-1 vote, the panel of the Fifth Circuit to which the appeal of the preliminary injunction was assigned rescinded the administrative stay that the Supreme Court had just permitted to go into effect. It scheduled an almost immediate oral argument, which it held yesterday morning. As this column goes live, the panel has yet to rule on whether to grant a stay pending appeal (which differs from an administrative stay in ways not worth discussing here). Thus, at least for the next few seconds, S. B. 4 remains enjoined.

Chaos in the Courts

Justice Sotomayor began her dissent in Texas v. United States by accusing her colleagues in the majority of inviting “further chaos and crisis in immigration enforcement.” She might well have omitted the qualifier “in immigration enforcement.” As University of Texas law professor Stephen Vladeck documented in his important 2023 book The Shadow Docket, in recent years the Supreme Court has been called upon to intervene—and has intervened—much more frequently than in the past in cases coming to it in an emergency posture (and thus has decided these cases without full briefing or oral argument, hence “shadow docket”). Immigration cases have been prominent on the Court’s shadow docket, but so have cases involving the death penalty, religious freedom claims, reproductive rights, and just about every topic that also can appear on the regular (“plenary”) docket.

Texas v. United States exemplifies many of the most common problems of shadow docket cases. The decision under review came to the Justices before there was a ruling by the court below; it concerned an ideologically divisive issue; the Supreme Court needed to decide the issue without sufficient time to hold an oral argument; and it did so in an order that was not accompanied by a reasoned explanation on behalf of the Court, only views of concurring and dissenting Justices.

To be sure, Texas v. United States was unlike some of the highest-profile cases on the Court’s shadow docket in that it did not originate with a highly ideological lawsuit that the plaintiffs chose to bring before a judge they expected to be sympathetic. The practice of “judge shopping” by such plaintiffs has been especially problematic in federal district courts that are sub-divided into divisions comprising a single judge. By filing suit in the Amarillo division of the U.S. District Court for the Northern District of Texas, red-state attorneys general and their allied private plaintiffs have been able to ensure that their cases would be heard by Trump appointee Matthew Kacsmaryk. Extremely broad rulings by the likes of Judge Kacsmaryk have played some role in expanding the Supreme Court’s shadow docket.

The good news is that last week the Judicial Conference of the United States announced that it would be changing the assignment system in cases seeking to block state or federal actions, in an attempt to limit judge shopping. The bad news is that this change will address only the tip of the iceberg.

For one thing, federal appeals courts, not just federal district courts, can and do issue broad rulings that necessitate expedited Supreme Court consideration. In Texas v. United States itself, the district court acted conventionally to block the extreme Texas law. It was the administrative stay issued by the Fifth Circuit—which Jeffrey Toobin accurately described in a recent essay in The New York Review of Books as highly politicized—that precipitated the quick trip to the Supreme Court.

For another thing, even the Judicial Conference’s modest effort to rein in judge shopping drew the ire of Republicans on Capitol Hill. Senate minority leader Mitch McConnell and two of his fellow Republican Senators sent letters (like this one) to the chief judges of districts containing single-judge divisions arguing disingenuously that the Judicial Conference lacks the authority to set case-assignment policy, while the obvious real motivation for their objection was their wish to preserve judge-shopping opportunities for ideologically aligned red-state attorneys general and private plaintiffs.

The Underlying Problem: Polarization

The efforts by congressional Republicans to preserve tactical opportunities that advantage their ideological allies underscore the core of the problem for the federal courts. Before the completion of the political project of realignment that began with Richard Nixon’s Southern Strategy, each of the two major parties was a broad coalition. Southern Dixiecrats were more conservative on many issues than Eisenhower/Rockefeller Republicans of the Northeast and upper Midwest. However, as each party has become more ideologically cohesive, the distance between the two parties has grown. Accordingly, it is increasingly difficult for Congress to enact bipartisan legislation.

Polarization has also spread to the courts. There have been divided Supreme Courts in the past, but ideological divisions did not invariably track partisan ones. For example, the leading figures driving the liberal rulings of the 1950s and 1960s were Republican appointees Chief Justice Earl Warren and Justice William Brennan. However, since the retirement of Justice Anthony Kennedy in 2018, every Republican appointee on the Court has been substantially more conservative than every Democratic appointee. Ideological polarization is arguably even greater on the lower federal courts.

Polarization of the courts leads to what Justice Sotomayor has called chaos for two reasons. First, reflecting the divisions of the political system and the broader society, the judges and Justices find themselves further and further apart from one another—so much so that they may see matters in entirely opposite ways. For example, during the heyday of disestablishmentarianism on the Supreme Court, liberal-leaning Justices regarded aid to religious institutions as constitutionally forbidden by the Establishment Clause of the First Amendment, but now the conservative supermajority regards most failures to aid religion as a violation of the same amendment’s Free Exercise Clause. Here and frequently elsewhere, each side views the other’s position as anathema.

Second, polarization and gridlock in Congress lead Presidents of both parties to push pieces of their political agenda through executive action. Stymied by rejectionists in Congress, President Barack Obama unilaterally adopted the Deferred Action for Childhood Arrivals (DACA) program for the Dreamers; President Donald Trump could not get the funding he wanted to build a wall at the southern border without paying a political price he deemed too high, so he diverted funds appropriated for other purposes; President Joe Biden has tried several ways to engineer student debt forgiveness without the statutory changes he cannot get through Congress. Whenever a Democratic President takes such action, Republicans sue—and vice-versa. Lower court rulings blocking nationwide programs then give rise to emergencies and chaotic consideration by the Supreme Court.

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In describing the root problem as polarization, I have acknowledged that both parties bear some responsibility for the chaos that Justice Sotomayor observes, but it would be inaccurate to say they bear equal responsibility. We have witnessed not just polarization but asymmetrical polarization. Republicans and Democrats are each more cohesive than in years past, but Republicans have moved much further from any sort of centrism.

Immigration is a good example. Texas v. United States was not precipitated by any arguable overreach by the Biden administration. Rather, the case arose because Texas Governor Greg Abbott and the Republican-dominated Texas legislature pursued a radical policy premised on the notion that a state could decide for itself that the federal government was not doing enough to enforce federal law and assume responsibility for that fundamentally federal function even in the teeth of opposition from the national executive.

The take-no-prisoners attitude of Texas is characteristic of Republican intransigence on immigration more broadly. After months of painstaking negotiations produced a bipartisan compromise in the Senate that was heavier on border enforcement than any position Democrats had heretofore supported, Republicans disavowed the very plan they had helped craft because former President Trump preferred to preserve immigration as an issue on which to campaign rather than to treat it as a problem to be solved.

Republicans have almost uniformly now thrown in their lot with Trump—who embodies Alexander Hamilton’s warning of what would befall the country should “a man unprincipled in private life desperate in his fortune, bold in his temper,  [be] seen to mount the hobby horse of popularity . . . to throw things into confusion that he may ‘ride the storm and direct the whirlwind.’” Accordingly, the polarization we see is between a center-left Democratic Party and an increasingly illiberal and authoritarian Republican Party. The great distance between those positions contributes to acute political polarization that has spread to the courts, but that distance is almost entirely a product of the rot of one of the parties.

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