Last night, the Supreme Court’s shadow docket struck again. In a 5-4 decision (without any written opinion), the Court held in Department of Homeland Security v. Texas that the federal government can do their job. That may sound like a glib summary of the facts, but it isn’t inaccurate. The underlying Fifth Circuit decision, which was vacated, really allowed the state of Texas to use razor wire to stop federal agents from doing their job — specifically federal border agents were unable to approach migrants in the course of their duties thanks to the Fifth Circuit.
If you’ve given the Constitution even the most cursory of glances, you’re probably thinking OF COURSE that is the result. It should be an easy victory for the federal government. The Supremacy Clause is pretty clear, that federal law “shall be the supreme law of the land; and the judges in every state shall be bound thereby.” And there’s 80+-year-old precedent making it crystal that “the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution.”
But folks, it was 5-4 — not the 9-0 you should expect.
The truth is, despite what right-wing pundits are parroting, this is highly disturbing. The Supremacy Clause is not a controversial doctrine — it’s well-established and should have easily resulted in a decision against Texas. The fact that four justices put aside the actual Constitution in this case should tell us something. (Chief Justice Roberts and Justice Barrett joined the three liberal justices in the majority.)
And it’s something we’ve known for a minute now — at least if you’ve been paying attention. The majority of justices appointed by Republicans may have sworn they adhere to a strict judicial philosophy, bound by the original or textual understand of the underlying law, but that’s a lie. Here a true originalist or textualist would have thrown their vote with the majority, yet four so-called conservatives have ditched that in favor of their preferred policy outcome.
And the Texas Governor hasn’t taken his narrow loss particularly well — he’s openly defying the Court’s order.
The minority’s cavalier attitude towards the literal words in the Constitution has emboldened a power-hungry politician just itching to start the next Civil War. When things are, you know, testy, a unified Court (especially on such a gimmie issue) speaks volumes. There’s a reason Earl Warren held out for an unanimous Court in Brown v. Board of Ed. Otherwise everyone just thinks their own personal interpretation of the Constitution is valid, regardless of what the majority holds.
Nothing about this is going to end well.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].