Predictions About How The Supreme Court Will Rule On Immigration Shouldn't Be Listened To, And Here's Why

The Supreme Court is hearing oral arguments in United States v. Texas, the lawsuit challenging President Obama's executive orders on immigration. Obama's policy shielded 4 million undocumented immigrants from deportation, and if the high court rules against the administration, those immigrants will immediately lose these protections. Early reporting indicates that the justices are skeptical of the program — but don't put too much weight into predictions about how the court will rule on immigration.

The lawsuit centers on two programs Obama launched via executive order: Deferred Action for Parents of Americans (DAPA) and Deferred Action for Childhood Arrivals (DACA). As their names suggest, each initiative delays deportation for a different type of undocumented immigrant. The plaintiffs argue that the administration lacks the constitutional authority to implement these programs, while the administration believes the programs fall well within the limits of prosecutorial discretion.

The court started hearing oral arguments on Monday, and several analyses of the justices' questioning have concluded that DAPA and DACA are not likely to survive the challenge. The precise meaning of "survive" is important here, and I'll get to that in a second, but there's a larger point here: Don't put too much weight in these analyses, or any prediction about how Supreme Court justices will rule on a case.


Trying to guess how the high court will rule on any given issue is a lot trickier than predicting, say, the outcome of an election, because Supreme Court rulings ultimately boil down to the feelings of just nine individuals (eight in this case, since there's an empty seat on the court). Lately, guessing what's going on inside those individuals' heads has proved next to impossible.

In 2012, the Supreme Court heard the first of two legal challenges to the Affordable Care Act, and after the first round of oral arguments, the overwhelming media consensus was that the law wouldn't last. Supreme Court reporter and judicial scholar Jeffrey Toobin called the proceedings "a train wreck for the Obama administration," and declared that "this law looks like it's going to be struck down." The left-leaning Mother Jones said that the hearings were "a disaster" for Obama, while Forbes contributor Peter Ferrara penned an op-ed confidently declaring "Why the Supreme Court Will Strike Down All of Obamacare."

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Needless to say, the law survived. And that's not the only unexpected ruling the court has issued in the last few years. After Antonin Scalia's unexpected death, the court watchers over at SCOTUSBlog determined that the pending case Evenwel v. Abbott, which challenged the meaning of "one person, one vote," was likely to result in a 4-4 split decision. To everybody's shock, the eight justices ruled unanimously to retain the current definition. And let's not forget the time that Sonia Sotomayor, a liberal justice appointed by Obama, issued an injunction against Obamacare's contraception mandate.

This isn't to say that we can't make an informed prediction about how individual justices will rule based on what we know about their judicial philosophies. It is to say that, at least on high-profile issues, the court has been pretty unpredictable lately.

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Because the court currently has only eight justices, there's a chance this case could end in a tie. If that happens, the lower court's decision would stand, and because the lower court ruled against the Obama administration, a split Supreme Court decision would block the immigration policies from being implemented — temporarily. But a tie would not set a national precedent, which means the immigration orders could conceivably be revived by a future Supreme Court on different legal grounds.

It's exciting to read the tea leaves and try to guess how the justices will rule. But that's exactly what this is: guessing. Only eight people know whether Obama's immigration policies will survive this challenge, and we won't know the answer until they tell us.