• Curt Levey

Justices Rule Against ‘Remain in Mexico’ but Stick to Principles

The Committee for Justice released the following statement by its president, Curt Levey, on the just-ended Supreme Court term, including today’s decision in Biden v. Texas:


"Joe Biden, Nancy Pelosi, and other Democrat leaders who have been denouncing the Supreme Court as extreme and ideologically motivated were proven wrong today when the Court upheld the Biden administration’s repeal of President Trump’s 'Remain in Mexico' policy, while also rejecting review of New York State’s vaccine mandate for healthcare workers, which lacks a religious exemption (Dr. A. v. Hochul).


Given strong legal arguments on both sides of the 'Remain in Mexico' debate, a right-wing ideologically motivated Court would have focused on the arguments supporting the unlawfulness of the repeal and struck it down to the cheers of the conservative base. The Supreme Court that Democrats imagine would also have taken the vaccine case, again to the cheers of the base.


Instead, in Biden v. Texas, Chief Justice Roberts along with Justices Kavanaugh and Barrett agreed with the three liberal justices that the law is on the side of the Biden Administration (Barrett agreed but would have remanded). While we have been very critical of Roberts and his tendency to bend the law in search of political compromise (see my Washington Post op-ed), in this case, the majority opinion he wrote is well-reasoned.


Yes, viewing the just-ended term as a whole, it has been a conservative Court. But it has been conservative in the jurisprudential sense, not the ideological or policy sense. That is, the justices have followed the text and intent of statutes and the Constitution, rather than pursuing a conservative policy agenda. When that has resulted in decisions that please conservatives on policy grounds, it has typically been because the Court is choosing the Constitution, as written, over the living Constitution that brought us decisions like Roe v. Wade.


To be fair, some conservatives have been critical of today’s immigration decision simply because they do not like the outcome. We remind them that 1) the current conservative Court is more principled than the liberal Courts of the past only because it refrains from the results-oriented decision-making of the latter, and 2) a principled Court will sometimes disappoint those hoping for conservative policy outcomes.


Too many Democrat politicians demand progressive outcomes from the Court and curse the justices or countenance intimidation and violence when they don’t get their way. Conservatives disappointed by the defeat of Trump’s 'Remain in Mexico' policy are unlikely to do the same."


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Media Contact: Curt Levey

Phone: (202) 510-0128

Email: clevey@committeeforjustice.org