Courts

Gorsuch Did Not Side With 'The Liberals,' He Sided With Antonin Scalia

The only thing Gorsuch and the liberals agreed on was that Clarence Thomas is an idiot.

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You mad bro? (Photo by Chip Somodevilla/Getty Images)

The policy of the past two presidents, both Donald Trump and Barack Obama, is that legal permanent residents could be deported if they commit “crimes of violence.” Even if you came here legally and went through all the hoops to attain permanent residence status, both administrations felt they could punish you with banishment. Both administrations cited the Immigration and Nationality Act’s use of “crimes of violence” as their authority to deport individuals.

In the instant case, Sessions v. Dimaya, James Garcia Dimaya was a legal permanent resident who participated in two burglaries. Violence was not used in the commission of those two acts, but the Board of Immigration Appeals called them “crimes of violence” anyway, and slated him for deportation. Loretta Lynch’s Justice Department tried to deport him, Sessions’s Justice Department continued the effort.

Today, the Supreme Court effectively ended that policy. In a 5 – 4 decision, the Court ruled that “crimes of violence” was an unconstitutionally vague standard.

The fact that the deportation policy was advanced by both a “liberal” DOJ and a Confederate one should tip you off to the fact that this area of law does not break down on Democrat/Republican lines. But the breakdown of the majority: Elena Kagan (writing for the majority), joined by Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and… Neil Gorsuch (concurring in the judgement, writing separately) caused a literal Drudge siren to go off.

Given our times, the fact that Trump’s handpicked Justice who sits in a seat stolen by Senate Republicans bucked administration policy — on immigration no less — is significant. We are about a week out from the Travel Ban arguments and Gorsuch’s willingness to disagree with the president is noted.

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But the narrative that Gorsuch “sided with the liberals” is a fundamental misunderstanding of the issues in the case and Gorsuch’s actual opinion. He did not “side” with Kagan’s important view that deportation is one of our most severe punishments, considerably worse than jail, and should be subjected to stringent application of due process. He did not agree that a categorical approach to crimes that can result in deportation (you did X so you have to go), was preferable to a subjective one (you did X and were a real jerk about it, so you have to go).

Instead Gorsuch merely agreed with his predecessor, Antonin Scalia, that vagueness is a thing. He then proceeded to have a grand originalist-off against Clarence Thomas — who doesn’t really think vagueness is a valid reason to declare laws unconstitutional. I mean, literally, Gorsuch’s opinion starts off with a reference to the English Revolution. I guess we’re lucky nothing has happened in the last 350 years to diminish the relevance of Oliver freaking Cromwell’s thoughts on legal clarity.

While Gorsuch starts with a pedantic history lesson, he comes quickly to Johnson v. United States, which was a case decided in the ancient American era of 2015. In Johnson, Scalia, writing for the majority, determined that the Armed Career Criminal Act’s use of the term “violent felony” was unconstitutionally vague. Gorsuch simply applied Scalia’s reasoning to Sessions v. Dimaya, and came to a similar result. I hardly think that an arch-conservative originalist agreeing with Scalia is that surprising, though it’s fair to note that, thus far, Gorsuch has been closer to Thomas’s version of originalism than Scalia’s.

The only surprising thing, then, is that Gorsuch took the opportunity to slam Thomas, as did Kagan in her majority opinion. That Thomas is a crazy person is really the only thing both sides were able to agree on. Both Roberts and Thomas wrote out dissents, but Thomas was called out, again and again, by both Kagan and Gorsuch.

If I’m going to have any hope for Gorsuch in the upcoming travel ban case, it’s because of his decision to stand up to Clarence Thomas, not Donald Trump. This line for Gorsuch’s dissent could be interesting:

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Alternatively still, JUSTICE THOMAS suggests that, at least at the time of the founding, aliens present in this country may not have been understood as possessing any rights under the Due Process Clause. For support, he points to the Alien Friends Act of 1798. An Act Concerning Aliens §1, 1 Stat. 571; post, at 6–12 (opinion of THOMAS, J.). But the Alien Friends Act—better known as the “Alien” part of the Alien and Sedition Acts—is one of the most notorious laws in our country’s history. It was understood as a temporary war measure, not one that the legislature would endorse in a time of tranquility

If… Gorsuch recognizes that the Alien and Sedition Act is one of the “most notorious laws in our country’s history,” will he perhaps recognize that Korematsu v. U.S. is one of the most notorious Supreme Court decisions in the country’s history? If Gorsuch is calling these times a “time of tranquility,” will he be less amenable to the government’s central argument in the travel ban case — that we are at EMERGENCY WAR OMG THESE MUSLIMS Y’ALL! Go back and read about the issues at play in Trump v. Hawaii. Gorsuch suddenly seems more in play.

As I said (toot, motherf***king toot) when previewing Sessions v. Dimaya, the key question would be whether Gorsuch acted as a servant of Antonin Scalia, or a servant of Donald Trump. Here, Gorsuch decided to go with the intellectual hobby-horse that brought him to prominence, instead of the President who appointed him.

We’ll see if that center can hold.

Sessions v. Dimaya [U.S. Supreme Court]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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