Conservative Judges vs. Iffy Right-Wing Legal Claims

By Robert VerBruggen

Tuesday, December 01, 2020

 

Lately I’ve been joking about a vast right-wing conspiracy to shore up the power of the new Supreme Court. Conservative lawyers across the country have filed a series of legal claims with a very particular set of skills: These cases ask courts to step in to advance conservative political goals, they seek to achieve such big victories this way that they drive the Left insane with panic . . . and they are incredibly weak legally.

 

The goal can’t possibly be for these efforts to win in court, no matter how many Federalist Society-approved judges Trump has installed. After all, the defining feature of a conservative judge is adherence to the text and meaning of the law. It’s liberal judges who pretend that laws mean whatever benefits their side of the political aisle.

 

Instead, the goal must be to buff up the legitimacy of the Court through a series of high-profile cases in which Republican-appointed justices “defect” and rule against conservative litigants. Then the justices will have the political capital to overturn Roe!

 

This is, again, a joke; no one is playing four-dimensional chess here (as far as I know). But the scenario above, in which conservative judges come out of 2020 looking like the neutral arbiters of the law they’re supposed to be, may nonetheless be how the story concludes.

 

The most obvious example comprises the lawsuits to overturn the 2020 election results as fraudulent, a string of cases that Andy McCarthy has been covering diligently. During Amy Coney Barrett’s confirmation hearings, Democrats repeatedly raised the prospect that the courts could hand the election to Trump. Yet nearly a month after Election Day, there’s no sign that Trump-appointed judges are pursuing this goal.

 

Allegations of fraud and other election shenanigans deserve investigation, but Trump appears unable to credibly challenge enough results to make himself the winner, and GOP-appointed judges are not going to hand him the election on the basis of challenges that are not credible. Stephanos Bibas, a Trump appointee to the Third Circuit (and a noted conservative legal thinker whose work has run on National Review), recently clobbered one attempt to stop certification of the results in Pennsylvania, writing that the campaign’s claims had “no merit.” The decision was unanimous, with Bibas’s opinion joined by two other Republican appointees. I expect similar results if cases such as this one are appealed to the Supreme Court.

 

During the Barrett hearings, Democrats also seemed highly concerned that the Court would overturn Obamacare on the basis of a ridiculous legal theory in which Congress rendered the law unconstitutional by removing the penalty for violating the individual mandate. One senator even proposed an elaborate conspiracy in which congressional Republicans had set up the legal challenge on purpose when they changed the law.

 

But when the case was argued before the Court a few weeks back, it became clear that the justices weren’t having it. The final decision still hasn’t come down, and the Court could do a variety of different things regarding the case’s second-tier legal issues. But Obamacare is almost certainly not getting struck down.

 

Then, this Monday, the Court confronted Trump’s plan to subtract illegal immigrants from the census for purposes of apportionment — meaning states with lots of illegal immigrants would get less representation in the House. Standing in the way of this plan is the text of the Constitution, which says that “representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”

 

As I laid out in July, that language does have some wiggle room, as the government has changed its treatment of certain groups (such as overseas federal personnel) over time. But it takes a creative reading of the law, and a departure from historical precedent, to declare that illegal immigrants in general don’t count as persons in the states where they live, and in many cases have lived for years. The idea is that “persons” really refers to “inhabitants,” and that “inhabitants” is a term of art that doesn’t include people living somewhere without authorization.

 

Just as happened at the Obamacare oral argument, some conservative justices heavily implied they were not friendly to this reading. Justice Barrett told a Trump-administration lawyer that “a lot of the historical evidence and longstanding practice really cuts against your position. And, you know, there’s evidence that in the Founding era, an inhabitant was a dweller who lives or resides in a place.” Justice Brett Kavanaugh told the other side that they’d “advanced forceful constitutional and statutory arguments” against excluding illegal immigrants.

 

Now, also like the Obamacare case, the census case features a lot of smaller details on which the Court’s position is less clear. Most important, the Trump administration now says it probably won’t be able to identify illegal immigrants comprehensively with the data it has, meaning it may have to settle for subtracting specific subsets of them, such as those who have been ordered removed from the country or are detained by Immigration and Customs Enforcement. The government also has records on illegal-immigrant “Dreamers” brought to the country as minors who signed up for “deferred action.”

 

In some of these cases, one can argue that the immigrants in question aren’t really residing in the states the census counted them in, so there’s room for a narrow Trump victory. But these folks might not even be numerous enough to shift any House seats, and the president’s original plan, to exclude illegal immigrants to the maximum extent possible, has been reduced to a shadow of its former self.

 

All of this speaks well of conservative judges. To the extent that Americans worried about the Supreme Court being run by shameless GOP hacks, these skeptical moves by justices should calm their fears. For that we can thank the conservatives who filled the courts with iffy claims and the lefties who went to DEFCON 1 over it.