The first Monday of October began the Supreme Court’s term, with a docket that brings a variety of topics, some fresh and some rehashes of older cases. Although public attention lingers on issues of labor rights, there are other pivotal cases awaiting their turn on the docket. This is Justice Gorsuch’s first full term on the high Court and it remains to be seen what implications his presence on the bench could entail; many will be quick to note the similarities and differences of opinion with his predecessor, the late Justice Scalia. Will Justice Gorsuch’s reputation for judicial restraint continue to define his place on the bench, or will his new position on the Supreme Court signal a change of style? During his time at the 10th U.S. Circuit Court of Appeals, Gorsuch had an exceptionally moderate record on immigration cases, citing a need to curb the power of government agencies over easily persecuted groups. This exception to his otherwise strongly conservative record may very well be a deciding factor in the Court’s future rulings.
While the general public has focused on the landmark labor case National Labor Relations Board v. Murphy Oil USA, and constitutional gerrymandering issues in Gill v. Whitford, one notable case has remained under the radar of public opinion: Jennings v. Rodriguez. This case pertains to detention procedures for immigrants who are awaiting deportation trial, particularly regarding how provisions of U.S. Code Title 8 §1225 and 1226 are enforced. These sections of the U.S. Code state the guidelines for how immigration officials may detain, deport or admit illegal aliens, and the legal provisions to which those aliens are entitled. While the court’s opinion of Jennings might not interest the general American citizenry, a staggering number of people could be affected by the outcome of this case. Every year, hundreds of thousands of people are detained while crossing the United States southern border, and many of them are eventually deported back to their countries of origin where they face poverty, health issues and ineffective government. Whether these detained immigrants are constitutionally entitled to due process depends on the Court’s decision here.
In 2007, Alejandro Rodriguez, along with six other alien detainees, sued David Jennings, director of Los Angeles’ Immigration and Customs Enforcement (ICE) agency. In short, the plaintiffs claimed that they were being illegally denied bond hearings while awaiting trial. This class-action suit has moved through lower courts for nearly a decade; last year the case was finally granted a writ of certiorari, elevating it to the Supreme Court. The Court will decide whether aliens seeking admission into the U.S. are entitled to bond hearings (every six months, with the possibility of release) given that they are not deemed a “security threat.” The Court could also decide that these hearings are not required at all; the ruling will likely hinge on interpretation of the scope of the Due Process Clause in the 5th and 14th Amendments to the Constitution.
Several amici briefs were filed at the Court on behalf of each side, the most notable from the United Nations High Commissioner for Refugees, written on behalf of Rodriguez et al. The crux of this brief is that under international guidelines, refugees cannot be held arbitrarily against their will. Whether the Court classifies any aliens as refugees remains to be seen; the Human Rights Commissioner's brief relies on this blanket classification of immigrants fleeing unfavorable and unsafe countries of origin as refugee populations. Long before Jennings reached the Supreme Court, a district court issued an injunction to uphold detainees’ right to bond hearings. The case was then appealed toward the 9th Circuit Court, which upheld the lower court’s decision. Now the Supreme Court must rule on the validity of this injunction, and the classification of aliens as it pertains to due process.
The Court heard oral arguments on Jennings on October 3rd and featured statements by each party. Attorney Malcolm L. Stewart, deputy Solicitor General, argued on behalf of the state. Mr. Stewart was questioned intensely by the more liberal justices, particularly Justice Sotomayor. The core of Stewart’s argument was that illegal immigrants, as aliens, had no constitutional rights, and are therefore not entitled to bond hearings. Rodriguez et. al were represented by a Southern California ACLU attorney, Ahilan Arulanantham. Justice Gorsuch and the more conservative justices directed some intense questioning towards Mr. Arulanantham. Justice Alito asked Arulanantham repeatedly, “Where in the constitution does it say six months?” in regard to the frequency of bond hearings. The focus seemed to be on the Due Process Clause: both attorneys utilized minutiae in the law’s implementation, particularly as to how long a particular detainee might be detained without a hearing. Possibilities for parole and grounds for asylum were also discussed at length, as well as other relevant parts of the U.S. Code which dictates procedure for the detention of aliens. One analysis from the legal analysis site ScotusBlog noted that “Kennedy seemed troubled by the apparent inconsistency between Stewart’s admission that unreasonably prolonged detention would violate due process and his insistence that arriving immigrants lack constitutional rights.”
In the end, none of the justices made their views entirely clear, and their responses to the attorneys’ arguments do not necessarily lend themselves to speculation of the justices’ opinions. That being said, re-arguments at the Supreme Court are rare, and often result in large majorities. Because immigration receives so much public attention as a political issue, it is unlikely that the Court will make any pivotal statements about immigrant rights in its decision; the ruling will more likely only address concerns directly addressed by the case. Still, this case deserves more attention than it receives because its resolution will affect many, either in a positive way or in a profoundly negative fashion.