There’s a reason Supreme Court watchers warn against jumping to conclusions based on oral arguments in high-profile cases. By the time those cases get through trials and appeals and make it all the way to Washington, the arguments often have nothing to do with the political issues that made them high-profile to begin with.
That dynamic was on display Monday as the Justices weighed the fate of President Obama’s proposal to halt the deportations of illegal immigrants whose children are in the U.S. legally.
When Obama first issued his executive action, the politically charged question was, Which is worse: letting illegal immigrants stay in America or breaking up families? But on Monday, the Justices were focused on two very different, legally consequential questions about the division of power between the federal government, the states and Congress.
First, the court was trying to decide whether Texas and other states have the right to sue the federal government because of the costs of letting the parents stay. Second, they where trying to figure out where to draw the line between a President’s power over immigration enforcement and Congress’s power to pass immigration laws.
The Justices asked lawyers for both sides whether Texas would actually be harmed by Obama’s action. Texas claimed a single phrase in Obama’s order, “lawful presence,” required it to issue driver’s licenses to the parents, which they argued would be expensive and burdensome. Obama’s lawyer, Solicitor General Don Verrilli, said Texas was incurring those costs specifically in an attempt to stop Obama’s move.
Justices also asked whether Obama had overstepped his power in saying he wouldn’t deport the parents. In response to a question from Chief Justice John Roberts, Verrilli accepted that there were limits to the President’s power to decide who to deport, and that he had to defer to Congress in some cases. Justice Anthony Kennedy, a sometime swing voter, described the entire proceeding by saying, “What we’re doing is defining the limits of discretion” by the President in immigration cases.
The fact that Supreme Court cases are supposed to settle important legal questions, not troubling political ones, is why both parties say they want Supreme Court Justices who interpret the law, not make it. But many read oral arguments as if the Justices are just cynically pretending to care about the technical issues in order to deliver the desired political result of the party whose President appointed them.
They may be right some of the time. On many high-profile issues the Justices align with the political positions of the parties that appointed them. But fortunately, the Supreme Court often delivers surprising results that cynics never saw coming in oral argument.