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SWING VOTE COULD GO EITHER WAY IF JUSTICES HEAR IMMIGRATION CASE

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Which quality in a judge has the greater value - judicial compassion or judicial restraint?

It is an old question, rooted in the distinction between justice, which is one thing, and law, which may be quite another. In the wake of California's referendum, the courts are about to revisit the issue. The state voted to deny certain public benefits, most notably public education, to immigrants who have entered the state unlawfully.Opponents have filed suit, but for the time being everything is on hold. It will be February before state courts hear argument in the matter. In this lull let me turn the clock back to June 15, 1982, when the Supreme Court decided Plyler vs. Doe. You are not likely to find a more absorbing exposition anywhere of the competing doctrines of judicial compassion and judicial restraint.

The case originated in 1975 when Texas, like California, decided to cut off state funds for the education of the children of unlawful immigrants. Mexican children in the Tyler district brought suit. They charged that the state had violated their constitutional right to equal protection. The high court split 5-4 on the issue.

Justice William Brennan spoke for the majority in ruling that Texas could not deny to "a discrete group of innocent children the free public education it offers to other children within its borders."

The challenge to California's referendum may wind up in the high court. How would today's nine justices vote? Let me guess: Four would follow Brennan's compassion, four would stick with Burger's restraint. The swing vote of Justice Anthony Kennedy could go either way.