Detention of Illegally Re-Entering Aliens

The U.S. Supreme Court issued three decisions today as it wraps up its October 2020 term. The one marginally crime-related case is Johnson v. Guzman Chavez, No. 19-987. The case involves the detention pending deportation of aliens previously deported who illegally re-enter the United States. Such re-entry is a crime, a more serious one than first-time illegal entry. The holding is that such aliens are subject to the more stringent of two statutes on detention pending deportation, rather than the more lenient one with more leeway for release on bond or conditional parole.

The decision is mostly 6-3, but there is an interesting split on jurisdiction. Justice Thomas, joined by Justice Gorsuch, does not think the Supreme Court (or any court) has jurisdiction in this case at all, so he does not join the footnote asserting that it does. The jurisdictional question for cases of this type was settled in 2018, but Justice Thomas continues to dissent from that holding. However, he acknowledges that both the precedent and the majority in the present case are against him, so he goes ahead and joins the lead opinion on the disposition of the substantive question, making it the opinion of the Court rather than a mere plurality opinion.

If a federal court as an entity concludes that it does not have jurisdiction it must stop there and not opine on the merits of the claim. Anything it said on the subject would be an advisory opinion, and the Supreme Court from its earliest days has declared such opinions to be outside its proper function. (This rule is not followed in some state courts, though.)

So what does an individual judge on a multi-judge court do when he or she concludes the court has no jurisdiction but the majority goes the other way? In many cases, such as this one, sticking to the no-jurisdiction guns may leave the case with no clear holding. Some judges do that, considering that it is a matter of principle.

I think Justice Thomas has it right. The individual justice can and should dissent from a holding on jurisdiction that he or she thinks is incorrect. Having lost that battle, though, the justice is bound by the majority’s decision, just as a lower court would be, and should then vote on the merits despite the jurisdictional doubt.

The primary reason that the Supreme Court was created in the first place was to provide uniform, nationwide rulings on questions of federal law. Every case in which the Court fails to provide a single, coherent rationale for its disposition is an institutional failure. Such failures should be kept to a minimum.

There are only two cases left to be decided, which will likely be on Thursday. Amy Howe describes them. Neither has anything to do with criminal law, but CJLF has an institutional interest in one. Americans for Prosperity Foundation v. Bonta involves California’s efforts to force nonprofits to disclose their donors. That seems to me to be a clear violation of the classic civil rights case NAACP v. Alabama ex rel. Patterson (1958). In the darkest days of the civil rights battle, Alabama sought to force the NAACP to disclose its members to facilitate harassment of them. Today, it is common for people supporting conservative causes to be harassed.

CJLF protects the privacy of its contributors to the maximum extent possible. We do not share or sell our mailing lists or donor lists except as the law requires. We hope the Supreme Court strikes down this noxious requirement.