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Gorsuch Could Disappoint Conservatives On Immigration

This year’s Supreme Court term begins Monday with a flashback. Two of the first cases to go before the court are being argued for a second time, now with the crucial addition of new Justice Neil Gorsuch, who was not present for the original oral arguments last term and was therefore unable to weigh in.

Gorsuch is poised to serve as the tie-breaking vote in the two cases, which were heard last year when the court had only eight justices. Gorsuch’s ideological footprint from his appellate rulings is very similar to that of Antonin Scalia, the conservative jurist whose death created the vacancy that Gorsuch is filling, and there is an expectation that he will largely be a reliable vote for the court’s right wing. But there are signs that on these immigration cases, at least, he may defy his reputation as a “Scalia clone.”

How Gorsuch responds to these cases, which deal specifically with enforcement of immigration laws, will shed light on the way he thinks about the tension between immigrants’ rights and national security and may give broader clues to his posture on issues that are likely to come before the Supreme Court many times over the next few years.

At the heart of both cases is a largely unresolved question about noncitizens’ rights within the U.S. legal system. Under the Immigration and Nationality Act, any noncitizen who commits a crime of violence must be deported to his or her own country. The case that will be argued before the Supreme Court today, Sessions v. Dimaya, hinges on whether “crime of violence” is clear enough for ordinary people to understand — and whether noncitizens, like criminal defendants, have the right to challenge laws for vagueness in civil court.

On Tuesday, the justices will hear Jennings v. Rodriguez, which deals with whether noncitizens who are being detained before their deportation hearings must be given a bail hearing — and possible release on bond — after six months of detention. A bail hearing before trial is a fundamental right for criminal defendants, but noncitizens have no such guarantee — and as a result, they can be held indefinitely in pre-trial detention centers.

A win for the defendants in Jennings would have an immediate impact on the 632,261 immigrants awaiting a hearing. “Given the fact that more and more people are being picked up and put into detention, these are very important issues, and it’s important for the Supreme Court to bring some light to this,” said Stephen Yale-Loehr, a professor at Cornell Law School.

Holding a case for reargument is uncommon, even on an ideologically divided court. “We can safely assume based on the questions the justices were asking that they were evenly divided,” said Timothy Johnson, a professor of political science and law at the University of Minnesota who has studied Supreme Court rearguments. “They held these cases until the last day of the term and apparently just couldn’t move forward,” he said. “They needed a ninth vote to break the tie.”

As the long-awaited ninth vote, Gorsuch has already begun to reliably side with the court’s most conservative members. Since joining the court in April, after the immigration cases were heard, he has expressed views on culture-war issues like same-sex marriage and gun rights that are far to the right of his colleague and mentor Justice Anthony Kennedy. There’s no reason to believe that he’ll deviate from Scalia’s legacy on most issues — if anything, he may prove more conservative than Scalia.

But Gorsuch’s perspective on immigration is more complex. As a judge on the 10th U.S. Circuit Court of Appeals, he was more moderate on immigration than his conservative reputation might suggest. In fact, his opinion in a high-profile case from 2016 could offer clues on his perspective in the two cases now before him, said Michael Kagan, an immigration law professor at the UNLV Boyd School of Law. “It’s hard to predict, of course, but this could be an area where there’s quite a bit of daylight between Gorsuch and Scalia.”

Gorsuch’s previous ruling has the clearest implications for the Sessions case, according to Kagan. In that case, James Dimaya, a citizen of the Philippines but a permanent resident of the U.S., was convicted of breaking into houses, which an immigration court said in 2010 constituted a “crime of violence.” Dimaya, who was slated to be deported, is challenging whether it’s sufficiently clear that he committed a “crime of violence” — reasonable people might disagree about whether a burglary is actually a violent crime. In a criminal case, a defendant could challenge a provision like this as unconstitutionally vague, i.e. a violation of his due process rights.

But the government (originally, the Obama administration) contends that the same standard simply doesn’t apply to immigration law — in other words, vagueness is less of a problem in the civil immigration context than in criminal law, in part because of the executive branch’s wide discretion in national security-related issues like immigration. But even if the criminal standards for specificity were applied to this case, the government claims that the law would still pass constitutional muster because a burglary could foreseeably become violent.

In the 10th Circuit decision last year, Gorsuch pointedly criticized government agencies’ broad power. In response to an attempt by a federal agency to alter the procedure by which undocumented immigrants seek legal status, Gorsuch wrote for the unanimous panel of judges, “If the agency were free to change the law retroactively based on shifting political winds, it could use that power to punish politically disfavored groups or individuals for conduct they can no longer alter.” In other words, courts should be able to stop government agencies from overreaching or acting unfairly, especially in situations where they hold significant power over vulnerable people like immigrants.

The legal issues in the two cases aren’t exactly the same, Kagan noted, and Gorsuch isn’t bound to follow the same logic he used in his lower-court decisions. But the ruling indicated that Gorsuch is unlikely to be friendly to what he perceives as state overreach. That can be applied to conservative targets like the Environmental Protection Agency or the National Labor Relations Board, but it also shows that he is “sensitive to the needs and struggles of immigrants battling against the government,” Kagan said. “This is a situation where skepticism of government power ends up being good for liberals.”

The Jennings case raises questions about whether noncitizens are entitled to the same protections as citizens when they are awaiting deportation hearings. U.S. citizens placed in criminal or civil detention are guaranteed a bail hearing in which a judge evaluates whether they can safely be released while awaiting trial. Immigrants — regardless of whether they’ve committed a crime — are not.

The court ruled in 2003 that pre-deportation detention without a bail hearing was acceptable for noncitizens if it was “brief.” One question now is what the court meant by that. Today, thanks to a steadily increasing backlog of pending cases, it is not uncommon for immigrants to remain in custody for one or two years before they appear before a judge, said Kevin Johnson, dean of the UC Davis School of Law.1

Immigrant-rights advocates argue that long-term confinement results in poor medical care, higher risk for sexual assault and serious mental health issues. Critics of private prisons — which make up 65 percent of immigration detention facilities — say these centers are especially inhumane.

Kevin Johnson speculated that whether Gorsuch thinks immigrants also deserve a bail hearing will depend on how disturbed he is by the process’s lack of judicial oversight. “It’s a more refined question than just, ‘Do I favor detention of immigrants?’” he said. “The question is, ‘Do I think there should be a judicial check on executive overreach?’ So it’s not inconceivable that Gorsuch could side with the immigrant here.”

When the rulings come down, Gorsuch’s influence might not be obvious. Coalitions can change when a case is heard before the court again, said Timothy Johnson, the expert on rearguments, and a surprising number of reargued cases have resulted in large majorities.2 But sussing out where Gorsuch stands on immigration is important not only because of the role he seems poised to play on the court, but also because of the growing prominence of immigration-related cases.

Conflicts about noncitizens’ rights in the detention system are becoming increasingly common, Kevin Johnson said, because of a 1996 expansion of the law that is being challenged in Sessions, which made it possible for enforcement officials to remove and detain more immigrants. As the population of detained immigrants rose, he said, the resulting rapid growth in immigrant detention facilities created a cottage industry of cases related to detainment itself, which are now percolating in the lower courts.

But the high-profile nature of the two cases before the court means that the justices are likely to tread carefully in their ruling. “Immigration is a political hot potato, so I would predict a narrow ruling — no sweeping statements about immigrants’ constitutional rights,” Yale-Loehr said. “But in a practical sense, the rulings in these cases will either help immigrants or they will hurt immigrants, and that’s why they’re so important.”


  1. The backlog is driven by a shortage of judges and an archaic bureaucratic system, which can cause significant delays.

  2. Since 1946, there have been 95 total 5-4 decisions out of 227 reargument cases.

Amelia Thomson-DeVeaux is a senior editor and senior reporter for FiveThirtyEight.