A conservative crosses the floor

It seems mild in comparison to what’s happened since, but it was a major scandal two years ago when the Republican majority in the U.S. Senate blocked then-president Obama’s nomination of a Supreme Court justice. Obama had named Merrick Garland, a well-qualified moderate, to fill the vacancy left by the death of justice Antonin Scalia. But the Republicans refused to consider him, insisting that the seat should remain vacant until a new president was elected.

That new president, of course, was Donald Trump, and in his first weeks in office he nominated Neil Gorsuch to fill the vacancy. Gorsuch was subsequently confirmed by a vote on partisan lines in the Senate.

At the time I suggested that although he was certainly a conservative, Gorsuch was unlikely to be a Trump lackey, and that in the circumstances the country could easily have done a lot worse. And since he replaced the conservative Scalia, he did not change the balance of power on the court; it remained divided four-all between liberals and conservatives, with the moderate Anthony Kennedy in the middle.

That’s the background to this week’s decision in Sessions v. Dimaya, in which Kennedy voted with the conservatives but Gorsuch switched sides to deliver a five-four majority, striking down a provision under which the government sought to deport a Filipino immigrant who had been convicted of first-degree burglary.

So this is no ordinary piece of floor-crossing. Gorsuch chose to depart from the government’s line in the very area that the Trumpists care about most, immigration control.

The decision itself was straightforward, following naturally from a 2015 decision, Johnson v. United States, in which Scalia had written the majority judgement. If you don’t feel up to reading the whole thing, the New York Times has a very good summary, and Eugene Volokh at Reason extracts the main part of Gorsuch’s concurring opinion.

The reason Gorsuch wrote a separate opinion, rather than simply joining the majority judgement, was that on one point he was actually more liberal than the others: he wanted to stress that laws providing for civil penalties should be scrutinised just as strictly as criminal laws. “[I]f the severity of the consequences counts when deciding the standard of review, shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes?”

Chief justice John Roberts wrote the dissenting opinion, in which he was joined by Kennedy, Samuel Alito and Clarence Thomas. The latter three had previously dissented from the court’s reasoning in Johnson, but Roberts managed to distinguish the two cases. It would be uncharitable to suggest that had anything to do with the fact that the defendant in Johnson was a white supremacist rather than a non-white immigrant.

So while the case suggests that some of the fears about Gorsuch’s appointment were overblown, it also highlights the cavalier attitude that the rest of the court’s conservatives take towards individual rights. Thomas indicated that he would overturn pretty much the whole “vagueness” doctrine, leaving Congress with the ability to enact laws whose meaning could not possibly be ascertained until a court had pronounced on them – by which time it would be too late for the unfortunate defendant.

Thomas also had the audacity to rely on the Alien Friends Act of 1798 as a precedent for mistreatment of immigrants, for which he was slapped down by Gorsuch, who called it “one of the most notorious laws in our country’s history”: “It was understood as a temporary war measure, not one that the legislature would endorse in a time of tranquility. Yet even then it was widely condemned as unconstitutional by Madison and many others … [and] may have cost the Federalist Party its existence.”

Like Scalia before him, Trump’s own justice seems to have a mind of his own. There could be interesting times ahead on the Supreme Court.


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