SCOTUS 101: Tie Vote Brings Open Seat Into Focus

Spanish sign reads "Listen SCOTUS!"

Spanish sign reads “Listen SCOTUS!”

Though technically not a decision at all, the ruling in United States v. Texas is one of the most important in the Supreme Court’s recent cases — and it will have reverberations on the November election.

Often opinions are abstract legal documents full of arcane language spanning dozens or hundreds of pages. Accordingly, many Americans do not feel directly connected to the workings of our land’s highest court.

In contrast, although the ruling in United States v. Texas is only nine words long, its impact will be keenly felt by millions in our country. Here is the ruling in full:

The judgment is affirmed by an equally divided Court.

This case concerned President Obama’s policy of deferring deportation and allowing employment for four million undocumented immigrants. These include immigrants with American children and the so-called “Dreamers” who were brought to the United States as children and attended school here.

Since Antonin Scalia passed away in February, the Supreme Court has been left with only eight justices on the bench. While the ruling in United States v. Texas is unsigned, it can be assumed that the four liberal justices (Elena Kagan, Stephen Breyer, Sonia Sotomayor and Ruth Bader Ginsburg) wanted to overrule the lower court, while the four conservative justices (Clarence Thomas, John Roberts, Anthony Kennedy and Samuel Alito) wanted to affirm its ruling that Obama’s deferred action policy constituted an unconstitutional expansion of presidential authority.

Today, the Supreme Court was unable to reach a decision. This is part of the consequence of the Republican failure so far to give a fair hearing to Mr. Merrick Garland, my nominee to the Supreme Court. It means that the expanded set of common-sense deferred action policies — the ones that I announced two years ago — can’t go forward at this stage, until there is a ninth justice on the Court to break the tie.

Republicans refuse to even consider any possible replacement for Scalia until January when the next president takes office.

While many Americans seemed unconcerned that our country’s highest court will be short-handed for an unprecedented length of time, while this split decision sets no legal precedent, and while (according to the United States Circuit Court for the Fifth Circuit’s earlier ruling) the secretary of Homeland Security’s ability to marshal and deploy department resources is not enjoined or impaired, it is painfully obvious that the ruling in this case will have enormous consequences: Millions of families are now in an uncertain legal situation; they may fear deportation if picked up on an unrelated matter; and they will have difficulty obtaining legal employment.

"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court..."

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court…”

One does not have to be a legal scholar or a political pundit to intuit how this 4-4 split would have been avoided had the Senate filled its constitutional duty to provide its “advice and consent” and consider the president’s judicial nominees.

This election provides a stark contrast that will be easily understood by voters, especially those with friends or family at risk of being deported or forcefully separated from a loved one.

On one side, we have a party whose senators refuse to meet Obama’s nominee, Justice Merrick Garland; whose representatives refused to consider “Dreamer” legislation; and whose presidential nominee wants to build a wall on our borders, doubts the qualifications of Hispanic judges and advocates banning immigrants of certain faiths.

While on the other side, we have a presidential candidate who stands up for “Dreamers.”

I’m going to do everything I can so you don’t have to be scared. And you don’t have to worry about what happens to your mom or your dad or anyone else. I feel really, really strongly, but you’re being very brave and you have to be brave for them too. Because they want you to be happy. Let me do the worrying. I’ll do all the worrying. Is that a deal? I’ll do everything I can to help, OK?

As president, who would these candidates appoint to fill the vacancy on the Supreme Court? And how would their judicial nominees break this deadlock when this issue is inevitably re-litigated before the Supreme Court?

If anyone doubted that the fate of the Supreme Court would weigh heavily on the presidential and congressional elections this November, I think this 4-4 non-decision puts the case to rest.

Smith, McHugh Nominated for Pennsylvania District Court Judge

Today, President Obama nominated two Pennsylvanians to the Pennsylvania District Court:

Gerald Austin McHugh, Jr.: Nominee for the United States District Court for the Eastern District of Pennsylvania. Gerald Austin McHugh, Jr. is a partner at the Philadelphia law firm of Raynes McCarty, where he handles complex civil litigation involving tort, insurance, and civil rights claims. Prior to joining Raynes McCarty in 2004, McHugh was a shareholder for 23 years with the civil litigation law firm of Litvin, Blumberg, Matusow, and Young. From 1979 to 1981, he served as a law clerk to the Honorable Alfred L. Luongo of the United States District Court for the Eastern District of Pennsylvania, and, in 1979, he served as a law clerk to the Honorable Edmund B. Spaeth of the Pennsylvania Superior Court. McHugh received his J.D. cum laude in 1979 from the University of Pennsylvania Law School and his A.B. summa cum laude in 1976 from St. Joseph’s University.  


Judge Edward G. Smith:
Nominee for the United States District Court for the Eastern District of Pennsylvania. Judge Edward G. Smith has served on the Pennsylvania Court of Common Pleas in Northampton County since 2002, handling both civil and criminal matters. He is also a 27-year veteran of the United States Navy Judge Advocate General’s Corps, holding the rank of Captain, and currently serves as Commanding Officer of the Naval Reserve Naval Justice School. Judge Smith previously served tours as both a military trial judge and military appellate judge and has earned the Bronze Star for service during combat operations in Iraq. From 1990 until his election to the bench, Judge Smith was a partner in the law firm of DeRaymond & Smith in Easton, Pennsylvania. He began his legal career serving as an Assistant Force Judge Advocate in Norfolk, Virginia and then served as a Senior Trial Defense Counsel for two years in Philadelphia, representing Navy and Marine Corps personnel in various matters. He received his J.D. cum laude in 1986 from the Dickinson School of Law and his B.A. in 1983 from Franklin and Marshall College.