Neil Gorsuch's Long Game: Why He Sided With SCOTUS Liberals

By Mark Joseph Stern, Slate

18 April 18

Why the justice sided with the Supreme Court’s liberals to protect immigrants from deportation.

n Tuesday, the Supreme Court struck a blow against the federal government’s deportation regime, invalidating a key provision of a statute often used to expel legal immigrants living in the United States. The court’s 5–4 decision will hinder the Trump administration’s ability to deport non-citizens, a victory for immigration advocates who’ve long charged that the law in question violates the Constitution. But what may be most remarkable about Monday’s ruling is the voting lineup: For the first time, Justice Neil Gorsuch cast a decisive fifth vote with the more liberal justices to reach a progressive outcome. Gorsuch is not drifting to the left. But his vote indicates that the justice has the same independent streak that led his role model, Justice Antonin Scalia, to occasionally push the law leftward.

Tuesday’s ruling in Sessions v. Dimaya revolves around a clause buried in the Immigration and Nationality Act. The law allows the detention and deportation of any alien convicted of an “aggravated felony,” which includes a “crime of violence.” That encompasses any felony that “by its nature, involves a substantial risk” of “physical force against the person or property.”

What, exactly, does that mean? It’s not at all clear. The defendant here, James Dimaya, was twice convicted of burglary under a strangely broad California statute that doesn’t even require unlawful entry. (The law is so sweeping that it could cover dishonest door-to-door salesmen.)

Is a burglary a “crime of violence” when it need not entail any actual violence? Immigration judges held that it was, allowing Dimaya’s deportation to move forward. Dimaya appealed, challenging the constitutionality of this “residual clause.” He argued that the provision is too hazy to comport with the Due Process Clause, which guarantees that ordinary people have “fair notice” of the conduct a law prohibits. In 2015, the 9th U.S. Circuit Court of Appeals agreed, holding in an opinion written by Judge Stephen Reinhardt that the residual clause violated due process. The Justice Department appealed, and the Supreme Court heard arguments in January 2017. But the eight-member court, which seemed to be deadlocked 4–4, set the case for rehearing after Gorsuch joined the court.

Now Gorsuch has broken the tie in Dimaya’s favor, joining Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan in striking down the law. In her opinion for the court, Kagan explained that this decision flows logically from the court’s ruling in 2015’s Johnson v. United States. That decision, written by Scalia, found that a similarly worded criminal statute was too vague to comport with due process. The government argued that this case is different from Johnson because it involved a civil statute rather than a criminal one. But, Kagan noted, the court has long held that deportation statutes are subject to the same vagueness rules as criminal laws—“in view of the grave nature of deportation,” a “drastic measure” that amounts to “banishment or exile.”

From there, Kagan easily found that this residual clause deprives immigrants of fair notice as to what qualifies as a “crime of violence.” She pointed to judicial disagreement over what crimes count: Some federal appeals courts have found that car burglary, statutory rape, evading arrest, residential trespass, unauthorized use of a vehicle, stalking, and firearms possessions are crimes of violence. Other appeals courts have reached opposite conclusions. These examples, Kagan explained, illustrate that the law produces “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

Gorsuch joined the bulk of Kagan’s opinion, but he wrote separately to add a few points. First, he responded to Clarence Thomas’ dissent, in which the justice asserted that the concept of due process, as originally understood, does not forbid vague laws. This battle of the originalists leads both justices to dive headfirst into 18th-century legal treatises and obscure 19th-century case law, wrangling over William Blackstone and the Alien and Sedition Acts. (Here, we learn that Thomas isn’t convinced legal immigrants in the U.S. have any due process rights.) In the end, Gorsuch seems to win the debate, marshaling more evidence for the proposition that the Framers felt some laws were “too vague to be applied.”

More consequentially, Gorsuch disagreed with Kagan as to the reason why the deportation rule should be subjected to “the fair notice standard” as if it were a criminal law. Kagan asserted that this exacting standard should apply “because of the special gravity of [the] civil deportation penalty,” Gorsuch wrote. He continued:

But, grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly severe sanctions. Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home? I can think of no good answer.

This passage raises a valid question—why is the freedom to remain in the U.S. more valuable than other kinds of liberty?— though it may prove to be a time bomb designed to blow up myriad laws that Gorsuch dislikes. Congress (and state legislatures) routinely pass nebulous statutes, then charge government agencies with interpreting and implementing them. Gorsuch seems to believe that all laws that deprive individuals of “life, liberty, or property” should be scrutinized carefully, particularly when legislators simply “handed off the job of lawmaking” to somebody else. Such a rule could jeopardize business and environmental regulations that progressives support. On the other hand, it could also imperil policies favored by law-and-order conservatives, such as those permitting civil forfeiture and unlimited detention of sex offenders.

Regardless of where Gorsuch takes this idea in the future, he deserves credit for following his principles to a fundamentally liberal result. The justice channeled his inner Scalia, drawing upon a deep skepticism of the government’s power to capriciously punish citizens and immigrants alike. Will his reasoning help a future court annihilate the administrative state? Maybe! But it might rein in overzealous police and prosecutors, too. Progressives should savor their SCOTUS wins where they can find them. And Dimaya is, without a doubt, a landmark liberal victory.