As immigration advocates jubilantly celebrated the five-to-four Supreme Court decision in the Sessions vs. Dimaya case, they pointed with amazement and wonder to the fact that the fifth “swing” vote was that of newly appointed, staunch conservative Justice Neil Gorsuch. So, what goes here? Is there truly cause for celebration? In terms of the findings in this case, which looked at narrowing the definition of just what constitutes a “violent or aggravated” felony under federal law, perhaps the answer is yes. In terms of the reason for Justice Gorsuch joining the liberal judges to give them the majority, perhaps the celebrations need to be tempered. Some exploration of both follows so you can determine how to put this SCOTUS decision in context.
Writing in Colorlines, Alphonso Serrano describes the case and the Court’s findings as follows:
The case, Sessions v. Dimaya, centered around James Garcia Dimaya, a man who legally immigrated from the Philippines. He was convicted of burglary twice and placed in deportation proceedings. An immigration judge ruled that Dimaya was eligible for deportation because his convictions qualified as an “aggravated felony” under federal statutes. The U.S. Court of Appeals for the Ninth Circuit overturned the order for deportation, and it was appealed to the Supreme Court.
The SCOTUS ruling, written by Justice Elena Kagan, questions the ambiguity surrounding the federal provision. “Does car burglary qualify as a violent felony,” Kagan writes in the ruling. “Some courts say yes, another says no.”
Justice Gorsuch concurred, writing that the Constitution “looks unkindly on any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it.”
The case had been heard by the previous eight-member court, but no conclusion could be reached, so it was held over for a full court. Now, this decision will spare thousands of immigrants from deportation, according to Dimaya’s attorney, E. Joshua Rosenkrantz. The Trump administration (via tweets) is asking Congress to pass legislation to facilitate the deportation of “dangerous criminal aliens.” So, the liberals celebrate, and the conservatives ponder their next steps.
On the surface, Justice Gorsuch’s rationale for his alignment with Kagan and the left side of the court on this issue seems to click. But when one digs a bit deeper, there is more to his vote that could lead to a much more conservative future. Writing in ThinkProgress, Ian Millhiser describes Justice Samuel Alito as the consummate partisan who would never join a five-to-four vote on the Court if it would give a decision to the left. His thinking isolates each effort and each case. On the other hand, he points to Justice Clarence Thomas, who thinks in terms of broad principles to move the law to the right. Thomas’s tactic can occasionally move him to the left of his colleagues. Millhiser then looks at what happened with this decision and where Justice Gorsuch and this decision fits.
Which brings us to Tuesday’s decision in Sessions v. Dimaya, a 5-4 decision where Neil Gorsuch sided with the four liberals in favor of an immigrant convicted of burglary. Gorsuch’s vote, and his separate opinion in Dimaya, confirms that he is much more a Thomas than he is an Alito. He is willing to hand liberals a small victory on the path to a much larger effort to shift legal doctrines to the right.
The man who occupies the seat that Senate Republicans held open for a year until Donald Trump could fill it has not gone soft—even if he did hand a victory to an immigrant.
All of this plays into the Gorsuch record of moving toward less and less regulation by the government. Since much of the regulation comes from the agencies and not from the legislation, this kind of opinion furthers Gorsuch’s goals of greater deregulation and weakening of federal agencies. Gorsuch was able to use this case to express and expand his anti-regulatory views. As you read his opinion fully, the direction becomes clear.
So, as you look for the next crack in the wall (pun intended!) of immigrant rights, and are counting allies, be careful not to count on Neil Gorsuch as a sure thing. There is more to his vote than one thinks. This cast was a stepping stone, and immigrants were a convenient shoulder to stand on.—Carole Levine