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Roberts Bolsters Swing-Vote Status With Immigration Rulings

June 26, 2020, 8:51 AM

Chief Justice John Roberts has strengthened his claim to the title of swing vote on the U.S. Supreme Court, siding with the majority in all eight of its immigration cases this term and casting the deciding vote in half of them.

The court heard an unusually high number of immigration disputes that made up nearly 15% of all expected opinions. That included Thursday’s 7-2 decision reinforcing the government’s ability to quickly deport people who enter the country illegally.

Roberts has emerged as the median justice on the majority conservative court following the retirement of Anthony Kennedy in 2018. He’s sided with liberals to uphold the Obama-era immigration program known as DACA, and to reject the addition of a citizenship question to the 2020 census. He’s also voted with fellow conservatives to curtail unions and to permit the Trump administration to carry out its travel ban against mostly Muslim countries.

The Roberts Court has decided between one and five immigration cases per term over the past decade. And the eight for the current term, plus three set for the one beginning in October, partly reflects the high priority placed on the issue by the Trump administration and its enforcement efforts.

While Roberts was the key vote in immigration cases, the needle didn’t move that much in terms of substantive immigration law. That’s reflected in fact that President Donald Trump’s two nominees, Justice Neil Gorsuch and Brett Kavanaugh, rounded out the middle in these rulings.

Pepperdine Caruso School of Law professor Barry McDonald noted that Gorsuch and Kavanaugh were with Roberts in the majority in every one of the immigration cases this term. The lone exception was the surprise ruling in the dispute over the Deferred Action for Childhood Arrivals (DACA) program. The court prevented the administration from ending protections for hundreds of thousands of young undocumented immigrants living in the U.S., known as “Dreamers.”

Still, the issues decided by the all of the justices, ranging from judicial review to the technical “stop-time” rule for determining residency to protections for Dreamers, often split them along traditional ideological lines, with Roberts casting the deciding vote.

“As the Court’s current swing vote, he will almost always be in the majority no matter how he votes,” said Christopher Hajec of the Immigration Reform Law Institute.

DACA Ruling

Unlike the remainder of the court’s docket, only one of its immigration decisions was decided unanimously. Three split the justices 7-2 and four went 5-4.

The court in its other rulings so far has been unanimous in 17 cases and split 18 times—only three of which were decided by one vote.

Of the 5-4 immigration cases, the most significant “by far” is DACA, said UC Davis School of Law Dean Kevin Johnson.

Writing for the majority, Roberts said that the administration hadn’t adequately explained its decision to undo the initiative, largely failing to consider the reliance that Dreamers and their families had placed on the program.

Although “the legal issues decided by the Court in the case are relatively narrow,” Johnson said, “the political repercussions of the decision will shape the future of immigration reform.”

But Hajec characterized the ruling as “more of a postponement than a loss.”

It allows the administration to try again to provide a more reasoned basis for its decision, McDonald said. That’s “not very burdensome from a legal perspective,” he said, but “it might be politically more difficult.”

Florida International University Law professor Ediberto Roman noted that DACA—like most of the other “wins” for immigrant rights—were procedural victories rather than substantive ones.

That fits with Roberts, who often reflects a concern for how something gets decided as much as what gets done, Roman said.

In the other two cases that broke in favor of immigrants, Guerrero-Lasprilla v. Barr and Nasrallah v. Barr, neither really expanded immigrant rights in any substantive way, he said.

In Guerrero-Lasprilla, the justices broadened judicial authority to review “questions of law” to include the application of law to facts. Notably, courts are statutorily prohibited from reviewing “questions of fact.”

Similarly, in Nasrallah, the court said federal law doesn’t prohibit courts from reviewing factual findings in a Convention Against Torture order, which provides relief from deportation for noncitizens who fear persecution or torture if returned to their native countries.

McDonald noted that those decisions will make it harder for the government to deport noncitizens.

But Johnson said there was nothing “earth-shattering” in these cases, just the court “ensuring relatively normal judicial review of the U.S. government’s immigration decisions.”

Mixed Bag

On the flip side, the administration notched some significant wins that somewhat streamlined the deportation process in certain cases, McDonald said.

In DHS v. Thuraissigiam on Thursday, the court allowed so-called expedited removals of asylum seekers at or near the border. And in Barton v. Barr, the court made it easier to deport lawful permanent residents subsequently convicted of certain crimes.

It was really “a mixed bag of successes and defeats for the Trump administration,” in immigration cases this term, McDonald said.

From “a pro-enforcement perspective, the Court’s decisions have stopped things from getting worse, but they have not yet made them better,” Hajec said.

McDonald pointed out that Justice Samuel Alito and Clarence Thomas, who were in dissent in both Guerrero-Lasprilla and Nasrallah, voted for the government in 100% of the immigration cases. Justice Sonia Sotomayor and Elena Kagan were just the opposite, siding with noncitizens in each of these cases.

Justices Ruth Bader Ginsburg and Stephen Breyer were mostly with their more liberal colleagues, with the exception of Thuraissigiam. They didn’t join the majority’s broad ruling in favor of the government, though, instead penning a separate opinion that limited the reasoning only to the case before it.

But both Gorsuch and Kavanaugh joined the court’s decisions against the Trump administration in full.

This highlights the importance that Gorsuch and Kavanaugh, in addition to the Chief Justice, “had as the ‘swing votes’ in these rulings,” McDonald said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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