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Constitution Check: Why does the Supreme Court refuse to hear some big cases?

October 4, 2016 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s Supreme Court correspondent, looks at Monday’s denial of a rehearing in the Obama administration’s immigration case and why it could stand out in the court’s history.

640px-Inside_the_United_States_Supreme_CourtTHE STATEMENT AT ISSUE:

“The court’s decision today further highlights how a short-handed Supreme Court is unable to do its job.”

 – Excerpt from a public statement on Monday by Democratic Senator Harry Reid of Nevada, the leader of the minority in the U.S. Senate, commenting on the Supreme Court’s refusal to hold a new hearing on President Obama’s attempt to reshape America’s policy toward undocumented immigrants living in the United States.


For more than 90 years, the Supreme Court has had very wide discretion to control its own workload, allowing it to shape the development of the Constitution and American law at its own pace.  That is the result of Congress’s passage in 1925 of the workload-easing “Judges Bill.”  During all of those decades since, and still today, it has not been true that anyone had a guaranteed right to have their case decided by the nation’s highest tribunal. And the baffling part for many Americans is that, most of the time, the court simply does not explain why it refuses to hear this case or that.

So it was that on Monday, the opening day of a new term, the Justices turned aside hundreds of new cases that had been filed in recent months, and there was not a word of explanation for any one of them.  That happens every year after the court returns to public sessions after a summer recess.

Probably the most important of those denials, in terms of the legal consequences, thwarted the Obama administration’s attempt to get a ruling on the legality under federal law and the Constitution of the President’s bold 2014 initiative on immigration policy.

That case clearly was one of the top four or five that the Justices had before them at their last term.  It involved one of the most significant questions that can arise under the Constitution about the roles of the president and Congress: Can the president, frustrated by inaction in Congress, use existing executive powers to boldly move forward with a sweeping innovation in policy?  And the court, in accepting review of that case, had given it even greater constitutional importance: It said it wanted to decide whether the president had violated the clause in the Constitution that requires the nation’s Chief Executive to “faithfully execute” the laws that are passed by Congress – a profound question that the court rarely has to answer.

Potentially, the case could have affected the lives of close to half of all of the 11-plus million immigrants living in this country without current legal permission to do so.

And, if all of those considerations were not important enough, the case also raised the question of when the state governments that disagree with a policy of the national government have a right to file a lawsuit in an attempt to bring down that policy.   Such lawsuits are much more common these days, and they have real potential to steer national policy from the perspective of the state capitals – a kind of reversal of the top-down trend that has prevailed since at least the New Deal days of the 1930s.

But the Justices couldn’t decide the case last term.  Four of them voted to uphold lower court rulings that President Obama did not have the authority to adopt the policy, so those courts had kept the policy on hold continuously since February 2015.  The other four Justices voted to overturn those orders.

Here, in full, is what the court’s decision last June said: “The judgment is affirmed by an equally divided court.”  As is always the case with such an even split, the court simply upholds the lower court’s action that was being challenged, and no wider precedent is set.

Once that happens, the court very seldom can be coaxed into reconsidering, but the Obama administration attempted that, anyway.  A policy with this significance, the government lawyers argued, should be decided by the Supreme Court.  On Monday, that long-snot attempt failed.  The denial order showed up on page 69 of the 71 pages of orders; it very simply listed the title of the case, United States v. Texas, with a handful of other rehearing requests that were being denied.

What now will happen to the 2014 immigration policy is that a single judge, sitting in a single federal District Court in Brownsville, Texas, will have the fate of the initiative in his hands.   And he has already said that, when it comes to an ultimate yes or no answer on the policy’s legality, it very likely will be a no.  And, if the government then appeals to the U.S. Court of Appeals for the Fifth Circuit, that court, too, has already said that the prospect is that the administration will lose.

Of course, the Supreme Court was aware of that outlook, and it did take on the case last January, with the full intention of deciding it in a final way.  But that was before Justice Antonin Scalia died, in February, leaving the court with only eight members.

No one outside the court can know how hard the Justices tried, in the 66 days that they debated it in private after holding a public hearing in April.  But the court is known to be very reluctant to finish a case on a 4-to-4 split, so they may well have labored vigorously to reach a decision.  Perhaps too much was at stake on each side of the divide between the two blocs of Justices; no one, it seems, could bring about a compromise.

And, under the rules of the court governing requests for rehearing, like the one the administration filed in this case, at least one Justice on one side of the divide had to be willing to cross over to make a majority to set up a rehearing.  No one, it is clear, was willing.

The denial of the government’s plea for rehearing in this case was not at all like the thousands and thousands of denials of review that the court issues every year.  The reality is that, in almost every case that is taken to the Supreme Court by some lawyer, there is always more reason to turn it away than to grant it.  There is almost no such thing as a case perfectly worthy of the court’s time.  Any close observer of the court’s work, day in and day out, can almost always find a reason to explain a given refusal to take on a case.   Such denials very rarely mean anything of real consequence.

But United States v. Texas probably will stand out in the court’s history.  Is it a lesson in the court’s need for a full bench of nine Justices?  Or does it have more to do with internal divisions among those eight who are now sitting, divisions so deep that no one can cross the divide in a very big case?

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on

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