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Conservative Poster Boy Neil Gorsuch Just Sided With the Court’s ‘Liberals’ on Immigration


Neil Gorsuch, Donald Trump

Justice Neil Gorsuch sided with the justices generally described as “liberal” in a case on immigration.

Yup. Gorsuch sided with “the notorious” Ruth Bader Ginsburg (gasp!), Elena Kagan, Sonya Sotomayor, and Stephen Breyer in a close 5-4 ruling. Roberts, Alito, Thomas, and the perceived neutral — Kennedy — were on the other side.

And who lost the case?  Jeff Sessions.

Trump’s pick for Supreme Court just ruled against Trump’s attorney general.



In doing so, Gorsuch upheld the 9th Circuit Court of Appeals, which covers broad swaths of the western United States, including California. (Double gasp!) That’s the circuit frequently attacked by conservatives as being liberal and frequently overturned. Gorsuch also upheld similar, yet separate decisions by the 6th and the 7th Circuit Courts of Appeals in the Midwest. The Supreme Court took the case to clean up the mess caused when the 5th Circuit Court of Appeals, which covers several Gulf states, ruled the other way

The case, Sessions v. Dimaya, is about whether the definition of the term “crime of violence” in 18 U.S.C. §16(b) is unconstitutionally vague. The court ultimately decided that it was. In other words, the justices ruled that the language of the law was junk and could not be applied fairly.

Here’s a summary of the facts, courtesy of the court:

A native of the Philippines, Dimaya has resided lawfully in the United States since 1992. But he has not always acted lawfully during that time. Twice, Dimaya was convicted of first degree burglary under California law. Following his second offense, the Government initiated a removal proceeding against him. Both an Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a “crime of violence” under §16(b). “By its nature,” the Board reasoned, the offense “carries a substantial risk of the use of force.”

From there, the case went through the traditional court system for review.

The problem, the justices at the Supreme Court decided, is the way the statute requires judges to determine whether a crime committed by an immigrant is, indeed, violent enough to require deportation. One section of the analysis required the deciding immigration judge to examine the office in general (an “ordinary case”), not the specifics of the individual case under review. As the Supreme Court noted, that standard is vague:

“How does one go about divining the conduct entailed in a crime’s ordinary case? Statistical analyses? Surveys? Experts? Google? Gut instinct?”

[ . . . ]

“The ‘ordinary case’ remains . . . an excessively ‘speculative,’ essentially inscrutable thing.”

Also problematic for the Supreme Court was the statute’s requirement that judges examine whether the type of crime committed by the immigrant poses a “substantial risk.” Again, the justices noted that the standard forces an immigration judge to examine the type of crime, not the specifics. Whether an offense, classified generally, poses a “substantial risk” requires “a judge-imagined abstraction, i.e., an idealized ordinary case of the crime.”

In short, the justices noted, the statute invited “more unpredictability and arbitrariness than the Due Process Clause tolerates.” It required immigration judges to backslide into “guesswork and intuition, invited arbitrary enforcement, and failed to provide fair notice.”

In a separate opinion concurring in part with the court’s rationale and concurring with the judgment, Gorsuch waxed poetic about the historical rationale for requiring firm, not wishy-washy, standards:

Vague laws invite arbitrary power. Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.

The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.

Perhaps it will heretofore be shouted from the rooftops that jurists are legal technicians, not partisan hacks.


[Photo by Eric Thayer/Getty Images.]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.