Supreme Court's Docket Is a Super Tuesday Reminder

(Bloomberg Opinion) -- If you’re voting on Super Tuesday, the Supreme Court calendar has a message for you. This week, the court will consider a raft of blockbuster cases on immigration, abortion, and the future of the Consumer Finance Protection Bureau. Today, the court also accepted a case on the fate of the Affordable Care Act. The message could not be clearer: unless Democrats elect a president whose coattails produce a Senate majority, the future of the Supreme Court is going to be intensely conservative, and it’s going to have a major effect on the future of our politics.

Traditionally, Democrats have paid less attention to the composition of the Supreme Court as a campaign issue than have Republicans. That’s been a mistake. For decades, liberals won landmark Supreme Court victories on the occasionally liberal tendencies of two Ronald Reagan appointees, Justices Sandra Day O’Connor and Anthony Kennedy. Those days are behind us. President Donald Trump’s Supreme Court nominees, Justices Neil Gorsuch and Brett Kavanaugh, won’t be softening their hardline conservatism in the foreseeable future.

The conservative majority on the Supreme Court will be front and center in this week’s cases. Monday is immigration day. The justices will consider two cases that sound technical but in fact go to the essence of how and whether the courts can oversee and second-guess immigration decisions made by the executive branch.

One is about what happens when the Board of Immigration Appeals, which sits within the Department of Justice, denies an immigrant’s request to stay in the United States — for example, because it concludes that his life isn’t truly in danger if sent back to his country of origin.

Ordinarily, the federal appellate courts can review the board’s conclusion. The Supreme Court has to decide whether that judicial review still exists when the board has also concluded that the applicant should separately be deported for having committed a crime — an issue that the appellate courts ordinarily can’t review.

The upshot of this technical issue is whether courts will ever review a whole class of cases where people may have committed crimes in the United States, but would still be tortured if sent back to their home countries.

The other immigration case is even more fundamental, asking whether someone slated for so-called “speed deportation” can get a judge to review the immigration official’s decision. Such deportations are currently allowed by law when an official detains a presumed noncitizen within 100 miles of the border. The court will consider whether Congress intended to suspend the writ of habeas corpus in cases like this, where an immigration official spontaneously kicks a noncitizen out of the country with no judicial review of any kind. It’s highly likely that the breakdown of votes in the case will be ideological.

On Super Tuesday itself, the justices will hear arguments about whether the independent agency structure of the Consumer Financial Protection Bureau is constitutional. The CFPB is Senator Elizabeth Warren’s signature accomplishment. Donald Trump hates the fact that he can’t fire or boss around the agency’s head. Progressives tend to support the idea of keeping the CFPB an independent agency. (Admittedly, they might see things differently if a Republican appointee was declining to enforce the agency’s mission and a Democratic president couldn’t do anything about it.) The court’s decision is likely to have a wide-ranging impact on the whole structure of independent agencies. Gorsuch has made it clear that he seeks to undo several features of the modern administrative state. Independent agencies could be one of them.

On Wednesday comes the biggest-ticket case of the year, reviewing the constitutionality of a Louisiana abortion statute. Directly flouting recent Supreme Court precedent, the law requires abortion providers to have admitting privileges at local hospitals, a tactic designed to shut down abortion facilities and thus make it difficult or impossible for people to get abortions in Louisiana. Given that the court decided a very similar case in favor of abortion providers in 2016, the only reason for the court to have taken up this case was to revisit that ruling. The big question here is whether the Supreme Court will head down the road to undoing Roe v. Wade, one case at a time. That has been the goal of the conservative judicial movement almost as long as I’ve been alive. And it is a movement whose time, with a strongly conservative majority on the court at last, has now come.

These are all clear examples of issues that anyone voting in the Democratic primary should care about. If they want to prevent a generation of right-wing dominance of the judiciary, Democrats not only need to win the White House. They need to win a Senate majority who can confirm the judges and justices nominated by a Democratic president.

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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