On Tuesday, all parties to the Department of Homeland Security v New York, a lawsuit against Trump-era policies against low-income immigrants, urged the Supreme Court to dismiss the case. The Court swiftly granted this request and removed one of the most controversial cases judges wanted to hear that year from review.
This is the third time in a little over a month that a major immigration case went up in smoke. In early February, the Court filed motions to remove two cases – Mayorkas v. Innovation Law Lab and Biden v. Sierra Club – from its calendar of arguments.
The Innovation Law Lab case challenged Trump's policy of staying in Mexico, which forced tens of thousands of migrants seeking asylum in the United States to wait in Mexico while their cases were being processed – the Biden administration is running that policy.
The Sierra Club challenged Trump's attempt to divert billions of dollars used on the military to build a wall along the Mexican border. On his first day in office, Biden signed a proclamation that "no more American tax money will be diverted to build a border wall."
The New York case, meanwhile, challenged the Trump administration's "public charge" rule, which aimed to prevent immigrants from entering the United States, extending their visas or obtaining a green card if immigration officials found it that a given immigrant would likely avail of public assistance programs such as grocery stamps or Medicaid.
Biden called for a formal review of that policy, and the Supreme Court's decision not to hear the case should allow orders from lower courts blocking policy in much of the country to take effect.
The court's decision to dismiss the New York case isn't particularly surprising – it would be extraordinary for a court to hear a case that all parties agree should be dismissed – but it's likely a major victory for immigrants. Although several lower courts have ruled against the public indictment, the Supreme Court temporarily reintroduced this rule in early 2020 and voted 5: 4 according to party-political standards. And that was before the late Judge Ruth Bader Ginsburg moved the court further to the right through Judge Amy Coney Barrett.
Had the Tribunal given a final ruling to maintain the public indictment, future presidents could have relied on this decision to reinstate the rule, even if the Biden administration had abandoned it.
The Supreme Court has taken far fewer cases than usual
The anti-climatic resolutions in the New York, Innovation Law Labs, and Sierra Club cases remind us that elections have ramifications: it is likely that the Supreme Court would have upheld all three directives if Trump were still in office. However, the court also planned to hear surprisingly few cases during its current tenure, even before the Biden government asked it to begin eliminating cases.
The Supreme Court begins a new term each October and that term usually ends the following June. In the intervening months, the Court usually holds seven “sessions” – blocks of five or six days in which the judges typically hear two cases a day. The judges hear 10-12 cases in a regular session.
During this tenure, however, the Court has heard far fewer cases than usual. Only eight cases were heard in the November session, five in the January session and six in the February session. The judges plan to hear only seven cases in the March session.
There are a number of possible explanations for this unusually slow workload. The pandemic forced the judges to close their building to the public and hold oral arguments remotely, and the pandemic may have slowed the lower courts as well, meaning there are fewer decisions to appeal against the judges.
The court's membership has also changed significantly in recent years – President Trump appointed three judges during his four-year tenure – so judges may want to spend some time getting acquainted with each other (and learning about how their new counterparts are likely to be important) cases) before filling their calendar with new arguments.
And the judges may also feel politically vulnerable as both Congress and the White House are controlled by Democrats who know exactly how the current 6-3 Republican majority in the court came about.
Shortly after Justice Antonin Scalia died in February 2016, Senate Republicans refused to hold a hearing to confirm President Obama's Supreme Court nominee Merrick Garland. At the time, they called for the Senate not to appoint new judges during a presidential election year. When Ginsburg died in September 2020, Republicans gave up that rule. Justice Barrett was confirmed just eight days before the 2020 election.
This led many Democrats to demand an aggressive response, such as adding additional seats to the Nine Justice Court to water down the votes of Trump's judges. Senate Majority Leader Chuck Schumer said that "nothing is off the table" at the Supreme Court.
So it is also possible for the judges to sit back and hold back to deter the Democrats from expanding the court.
That doesn't mean that this term is total sleep. The judges still heard one case trying to repeal the Affordable Care Act, a second case that could give religious conservatives a sweeping new right to discriminate against LGBTQ people, and a third case where the remains of the Voting Rights Act could be gutted. The Court of Justice is expected to take its decisions on these cases in June.
But for some reason this was an unusually quiet term.