The Supreme Court declined to rehear the case that has blocked President Obama’s executive actions on immigration. This means the court, which split 4-4 on the case last term, won’t rule again–likely after the next justice is confirmed.
The move was among the first as the short-handed and ideologically split Supreme Court eased back into action Monday for its 2016-17 term, and it came without any comment from the eight justices. It indicates, however, that the court thought it was still split evenly on that issue and is uncertain about when a ninth justice might be confirmed to break a tie in that and other cases.
This is all the more reason for the GOP-controlled Senate to block Merrick Garland’s confirmation until a new president (and Senate) takes office. Republicans are now seeing their chances improve in tight senate races such as New Hampshire and Florida–bringing renewed hope of at least two more years of congressional control.
If Trump wins, the entire issue of Obama’s executive orders is moot–as Trump would almost certainly rescind them. But he might issue some of his own, and therefore might want a less originalist justice to replace the strict Constitutional interpretations of Antonin Scalia. If Hillary wins, she could either stick with Garland, who would likely win confirmation by an easy margin, or she could try with her own pick of a more liberal justice.
Either way, the next justice may decide what the president can and cannot do with regards to immigration, including what amounts to unilateral granting of amnesty for those here illegally. When Congress reconvenes in a lame-duck session after November 8, if Hillary wins, they may confirm Garland just to deny her.
They shouldn’t. Republicans have made their bed, and should not unmake it for the new Congress and president. Save the next justice for the next term.