Manny Vargas, Senior Counsel Immigrant Defense Project
Immigrants and the criminally accused did not have to wait long to get first indications of whether they could hope for justice from the Supreme Court’s newest member – Brett Kavanaugh. During his first month on the bench, Kavanaugh heard argument in three cases in which the Court’s decisions could have a significant impact on the ability of immigrants and the criminally accused to fight harsh federal government interpretations of liberty-depriving immigration detention and criminal sentencing laws. And the first indications from Kavanaugh’s questions and comments during these arguments were not promising.
In Neilsen v. Preap, Dkt. No. 16-1363, immigrants challenged the federal government’s detention of immigrants, without the right to a bond hearing, long (sometimes many years) after release from criminal custody even though Congress’ legislation only speaks of such detention of immigrants convicted of certain crimes “when” the alien is released from criminal custody.
During the argument on October 10, several Justices ranging from Justice Sotomayor to Justice Gorsuch challenged the lawyer representing the United States on the government’s position that DHS could pick up an individual at any time after their release from criminal custody and questioned whether instead the statutory language required that there should be some time limit. Kavanaugh, on the other hand, focused on what he perceived as Congress’ knowledge that immigration detention would not be immediate and indicated that Congress’ failure to set out a specific time limit made him question whether there should be any time limit.
Then, when ACLU counsel Cecillia Wang argued that the Court’s history of not approving such “civil” detention without an individualized hearing meant that Congress should be presumed to have written the immigration detention provision narrowly, Kavanaugh asked:
Is that presumption based on what we think was really going through Congress’s mind at the time, or is it based on a constitutional overlay? Because what was really going through Congress’s time in 1996 was harshness on this topic. Is that not right?
Sadly, in Kavanaugh’s apparent view, what the statutory language states and what the constitutional due process concerns might be is trumped by “what we think was really going through Congress’ mind at the time.” Kavanaugh’s approach contrasts sharply with the more text-based approach of even the much-beloved-by-conservatives former Justice Antonin Scalia. In fact, Scalia often sided with the Court’s more progressive Justices in rejecting government interpretations of the immigration laws that stretched these laws beyond their express terms.
Additional not promising initial signs of what we can expect from Kavanaugh on justice for vulnerable communities were also evident in some of his questions and comments during the two criminal sentencing cases heard the day before (October 9) – Stokeling v. U.S., 17-5554, and U.S. v. Stitt, Dkt. No. 17-765. Both of these cases involved challenges to federal criminal sentencing provisions that imposed very harsh prison sentence enhancements for individuals convicted in the past of certain crimes.
Right out of the box in his first heard case, the Stokeling case, Kavanaugh challenged the petitioner’s lawyer on her argument that prior convictions that covered slight force robberies, such as a purse-snatching, should not necessarily be deemed “violent” offenses subjecting the defendant to a minimum 15-year prison sentence. Despite the Supreme Court’s broad statements in an earlier precedent decision that a prior offense should not be deemed “violent” if it did not require substantial force to be used, Kavanaugh expressed his willingness to read the prior precedent as narrowly excluding only “tap on the shoulder”-type conduct.
Notably, the harsh federal government interpretations at issue in these two criminal sentencing cases may also impact the reach of similarly defined immigration law mandatory detention and deportation provisions that the federal government likewise reads as encompassing relatively low-level conduct. Thus, Kavanaugh’s evident pro-government leanings in these cases, which it appears will exceed those of the Justice (Anthony Kennedy) that he replaced, is further ominous news for the cause of future fair treatment of immigrants under the law.