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Supreme Court's Empty Chair Far Too Impactful: Legal Experts

‘Terrific’ nominee stuck on sideline as high court deadlocks, former clerk says

Every day that passes without a ninth justice means the U.S. Supreme Court cannot decide on some of the nation’s most critical and controversial cases. The crippling reality played out Thursday, as the court split 4-4 on a major immigration policy.

Those close with President Barack Obama’s nominee Merrick Garland say there is one simple way to move the country forward.

"We’ve been stuck now at eight for quite a while, and here it seems the chickens have come home to roost," said Nora Freeman Engstrom, a Stanford Law professor who clerked for Garland in 2003.

Announced in late 2014, the Obama administration sought to use executive measures to push through immigration reform after Congress did not act. The policy tried to shield more than 4 million people from deportation. However, Texas and 25 other states sued, and lower courts blocked the policy’s implementation, claiming the president did not have the power to order the changes.

Today’s deadlock decision from the Supreme Court allows the lower court’s decision to stand.

"It means that the expanded set of common-sense deferred action policies can’t go forward at this stage, until there is a ninth justice on the court to break the tie," Obama said during a news conference Thursday. "I nominated Judge Merrick Garland to the Supreme Court more than three months ago, but most Republicans so far refuse to even meet with him."

It’s a frustration shared on the Stanford campus.

"Probably 5 million people’s lives were affected by today’s judgment," Freeman Engstrom said. "And what we have is literally one sentence, telling them that their hopes are dashed, their dreams are going to have to be deferred when we have another person who would be just terrific literally standing on the sidelines unable to even be considered."

She says if her friend and mentor were frustrated by political inaction, he would never let on.

"This is someone with the ideal judicial temperament. I think he’s a patient person, but he’s also just ready," Freeman Engstrom said.

Thursday’s lack of decision also reinforces the Republican strategy of blocking any hearing on the nominee, who they believe would have sided with the president.

"Certainly, it would be an odd situation where Merrick Garland gets on the court and one of his first acts would be to strike down the signature policy of the president who nominated him," Santa Clara Law associate professor Deep Gulasekaram said.

Because Garland is a centrist, Gulasekaram says it’s not clear which way he would have voted had he been on the Supreme Court to hear the immigration case.

Gulasekaram says regardless of who is on the Court, having only eight justices is not good for democracy. Some of the cases resulting in ties may come back to the court, costing taxpayers more money to repeat the process.

Legal experts say they expect another 4-4 deadlock in the days ahead as the court rules on what’s considered the most important abortion case in the past 20 years – Whole Woman’s Health v. Hellerstdt – on Monday.

"And in this case, that means the Texas abortion ruling would be upheld, and all but 10 clinics would be left open in Texas,” Gulasekaram said.

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