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I Think The Supreme Court Just Ruled Strunk And White Supersedes The Constitution

Just when you think textualism can't get any more morally bankrupt...

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Justice Samuel Alito

I, hope the — grammatical and punctuation — structure of this so-called “sentence,” annoys the living hell out of people who care about grammar; who are the worst, irregardless of party.

That sentence is the only thing I could think of to write that would bother a grammarian as much as I am bothered by Samuel Alito’s opinion in Nielsen v. Preap. In a case involving whether the government could re-arrest immigrants who haven’t been convicted of a crime, years after their initial arrest, and indefinitely detain them, Alito decided to go full textualist. Instead of considering the spirit of our laws, statutes, or humanity, Alito determined that the strictures of adverbial use allowed the government to snatch up non-citizens out on bail or on parole simply because of his interpretation of grammar and Webster’s Dictionary.

At issue was a section of the Immigration and Nationality Act which authorizes the Secretary of Homeland Security to arrest “potentially deportable” noncitizens after they commit certain specified offenses. These noncitizens don’t have to be convicted of a crime, just jailed on suspicion of committing a specified crime. If these noncitizens are released from jail over the normal course of, you know, living in a country where you are innocent until proven guilty, DHS is allowed to arrest them again, post-release, and hold them until a decision on their deportation can be made.

Upon reflection, that’s a terrible law! But we’ll return to that later. Because, as has been standard during the Trump administration, any terrible, anti-immigrant law that is lying around has been picked up and fully weaponized against noncitizens by the current regime. Homeland Security Secretary Nielsen has been using this authority to goosestep around the country and snatch up noncitizens whose qualifying arrests happened 5, 7, and in one case 11 years prior to their re-arrest by DHS.

Plaintiffs argued that their re-arrests violated the law, which clearly contemplates re-arrest as an “immediate” proposition. To the extent the law is justified, it’s because noncitizens who are suspected of terrorism are serious flight risks if they happen to make bail. If that’s what you are concerned about, you should be waiting in the jailhouse parking lot after they are released to either hold them pending trial or deport them straight away. Waiting months or years or decades later obviates any point of the stupid law.

But Sam Alito wasn’t interested in any of that. Instead, he put his Grammar Nazi blinders on and delivered an opinion truly devoid of any consideration of how the law was supposed to work. From the opinion:

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First, respondents’ position runs aground on the plain text of §1226(c). Respondents are right that only an alien “described in paragraph (1)” faces mandatory detention, but they are wrong about which aliens are “described in” paragraph (1).

Paragraph (1) provides that the Secretary “shall take” into custody any “alien” having certain characteristics and that the Secretary must do this “when the alien is released” from criminal custody. The critical parts of the provision consist of a verb (“shall take”), an adverbial clause (“when . . . released”), a noun (“alien”), and a series of adjectival clauses (“who . . . is inadmissible,” “who . . . is deportable,” etc.). As an initial matter, no one can deny that the adjectival clauses modify (and in that sense “describ[e]”) the noun “alien” or that the adverbial clause “when . . . released” modifies the verb “shall take.” And since an adverb cannot modify a noun, the “when released” clause cannot modify “alien.” Again, what modifies (and in that sense “describe[s]”) the noun “alien” are the adjectival clauses that appear in subparagraphs (A)–(D).

Are you f**king kidding me with this s**t? This law is about keeping terrorists from melting away off the radar and it’s being used to harass brown people, and your justification for allowing that harassment is “How Adverbs Work, by Samuel Alito.”

But wait, there’s more.

Respondents and the dissent contend that this grammatical point is not the end of the matter—that an adverb can “describe” a person even though it cannot modify the noun used to denote that person. See post, at 5–6 (opinion of BREYER, J.). But our interpretation is not dependent on a rule of grammar. The preliminary point about grammar merely complements what is critical, and indeed conclusive in these cases: the particular meaning of the term “described” as it appears in §1226(c)(2). As we noted in Luna Torres v. Lynch, 578 U. S. ___, ___ (2016) (slip op., at 6), the term “‘describe’ takes on different meanings in different contexts.” A leading definition of the term is “to communicate verbally . . . an account of salient identifying features,” Webster’s Third New International Dictionary 610 (1976), and that is clearly the meaning of the term used in the phrase “an alien described in paragraph (1).” (Emphasis added.) This is clear from the fact that the indisputable job of the “descri[ption] in paragraph (1)” is to “identif[y]” for the Secretary—to list the “salient . . . features” by which she can pick out which aliens she must arrest immediately “when [they are] released.”

No morally bankrupt textualist opinion is complete without an appearance from Webster’s. I swear if these people could time travel to the library at Alexandria, they’d save a dictionary and burn all the scrolls saying homosexuality is cool.

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Alito’s opinion is infuriating. He subverts the Congressional intent of the law on purely linguistic grounds, then pats himself on the back for being a simple-minded hobgoblin.

But I’m starting to think that one of the reasons conservatives were so excited to put an alleged attempted rapist on the Court was to set the bar so low the rest of them look smart and impartial by comparison. I’m going to need to dig out my thesaurus to adequately describe Justice Brett’s concurrence, so read this sentence and I’ll get back to you:

The issue before us is entirely statutory and requires our interpretation of the strict 1996 illegal-immigration law passed by Congress and signed by President Clinton. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009–546.

Brett Kavanaugh is a niggling little man. Bill Clinton has nothing to do, at all, with this case. It’s unusual for the Court to even mention which president signed whatever law they’re interpreting. You’ll note, for instance, that Kavanaugh did not mention the Congressional co-sponsors of the bill. No, Kavanaugh threw “Clinton” in there because he is a partisan operative whose instincts are for hackery.

Any time this Court has an opportunity to interpret a law as allowing the harassment of black and brown people, it will. Any time this administration finds a law that it can use to further their project of ethnically cleansing the country of black or brown people, it will. While many of you are having voyeuristic fantasies about what’s happening inside the Conways’ bedroom, know that the political aims of Kellyanne Conway and the legal aims of George Conway are working in perfect concert to make a deplorable beast with two backs.

Nielsen v. Preap [SCOTUS.gov]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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