The Trump administration’s focus on the appointment of conservative judges made judicial policy a central issue in political debates. The ideological positions of Supreme Court justices were made clear not only in their confirmation hearings, but also in recent judicial decisions handed down by the Court that were evidence of the real-life consequences of the appointment of conservative judges.
But things need to be put in context. The fierce political debate in the U.S. convinced many people not part of the legal sphere to believe that it is all about politics. But the real picture is more complex. Most lawyers are trained in the vocation of the law, theory is less interesting. But there is a robust literature on the sociology of law that teaches us there are complex processes that create a legal culture that is some times stronger than underlying political ideologies. A good example is the APUS Legal Studies course SOCI 422 Sociology of the Law.
In recent months the U.S. Supreme Court published two opinions having to do with immigration. As we all know, immigration is a field of law with a deep political context. Immigration law has been politicized to its detriment by both sides of the political debate, but there are forces within the legal system that can mitigate those political influences.
U.S. v. Palomar-Santiago
In May, the court issued a unanimous decision written by Justice Sonia Sotomayor in United States v. Palomar-Santiago. Respondent Refugio Palomar-Santiago was deported from the United States based on a felony conviction for driving under the influence (DUI). When he was caught and convicted in 1988, a DUI was considered an “aggravated felony.” What does this mean? As students in my LSTD 402 Immigration Law course know, this classification resulted in subjecting a noncitizen to removal from the United States.
The respondent returned to the U.S. again in 2017 and was convicted of unlawful reentry after removal. His defense was based on an interesting change in the law. In 2004, the Supreme Court ruled in Leocal v. Ashcroft, that “a higher mens rea [criminal intent] was needed” for an offense to qualify as a crime of violence than the merely accidental or negligent conduct involved in a DUI offense. Palomar-Santiago claimed that in light of this decision, six years after his removal, this ruling retroactively abrogated that removal decision.
Justice Sotomayor solved this legal question using procedural language. The Ninth Circuit Court agreed with the respondent that the pertinent section provides that defendants charged with unlawful reentry “may not” challenge their underlying removal orders “unless” they “demonstrat[e]” that three conditions are met: (1) they have “exhausted any administrative remedies,” (2) they were “deprived . . . of the opportunity for judicial review,” and (3) “the entry of the order was fundamentally unfair.”
The Ninth Circuit Court ruled that not all three requirements were necessary. So, even though the respondent did not exhaust all his options, according to the first and second conditions the removal order should be revoked.
Justice Sotomayor was unequivocally not convinced: Without the benefit of the Ninth Circuit’s extrastatutory exception, she wrote, the “first two procedural requirements are not satisfied just because a noncitizen was removed for an offense that did not in fact render him removable. Indeed, the substantive validity of the removal order is quite distinct from whether the noncitizen exhausted his administrative remedies (by appealing the immigration judge’s decision to the BIA) or was deprived of the opportunity for judicial review (by filing a petition for review of a BIA decision with a Federal Court of Appeals).”
These kinds of decisions that cross ideological boundaries for the sake of the judicial system and its internal procedures, logic and continuity are an important lesson to jurists — not everything is an extension of politics.
Here is another great example from April 2021.
Agusto Niz-Chavez v. Garland
This case of Agusto Niz-Chavez v. Merrick B. Garland also crossed ideological lines. The majority 6-3, opinion was written by Justice Neil Gorsuch, who was joined by both conservative and liberal justices. The minority opinion, written by Justice Brett Kavanaugh, was joined by one conservative and one liberal justice. The case also raised a question of procedure.
Nonpermanent resident aliens ordered removed from the United States under federal immigration law may be eligible for discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years. But this period of time is interrupted according to a stop-time rule included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
The statute provides that the period of continuous presence “shall be deemed to end . . . when the alien is served a notice to appear” in a removal proceeding. The term “notice to appear” is defined as “written notice . . . specifying” certain information, such as the charges against the alien and the time and place at which the removal proceedings will be held.
In this case, Niz-Chavez received two documents over a period of two months that could be considered notices to appear. The majority opinion ruled that a notice to appear sufficient to trigger the IIRIRA’s stop-time rule is a single document containing all the information about an individual’s removal hearing. The majority opinion focused on the language of the statute and this close reading of the statute took up most of the opinion. In the end, the majority opined on the goals of the legislation and touched upon policy considerations, but the crux of the text focused on language and the close interpretation.
So what does that teach us? That the law is a profession and while it is true it has a deep connection to ideology and politics, it also has an internal language and terminology that can mitigate the ideological overtones that are part of the discourse. The simplistic view of the law from both the left and the right might be what talking heads need in the world of instant cable news, but it does not represent the complex reality of the courtrooms.