Neil Gorsuch voted with the liberal justices, but his opinion should chill you to the bone

If you are surprised by Gorsuch's vote to protect immigrants, you haven't been paying attention to Gorsuch's record.

IAN MILLHISER
APR 17, 2018, 2:28 PM

Broadly speaking, there are two different approaches to the law on the Supreme Court’s right flank.

Justice Samuel Alito is the consummate partisan. Unlike his other conservative colleagues, Alito has never cast the key fifth vote to throw a decision to the Court’s liberals. He’s also far more inclined to manipulate existing doctrines than to overrule them — claiming that longstanding doctrines actually require progressive laws to be read narrowly, even when such claims are the opposite of the truth. Alito tends to view each case in isolation. And, whenever possible, he presents the best arguments he can muster to gain a conservative result in each particular case.

At the other end of the spectrum is Justice Clarence Thomas. Less partisan and more ideological, Thomas is willing to push much further than Alito, and he has no compunctions about explicitly overruling major precedents. For example, under Thomas’ theory of the Constitution, child labor laws and the federal ban on whites-only lunch counters are unconstitutional. Unlike Alito, however, Thomas thinks in terms of broad principles rather than in terms of isolated efforts to move the law to the right. On rare occasions, this broader approach to the law places Thomas to the left of his fellow justices.

Which brings us to Tuesday’s decision in Sessions v. Dimaya, a 5-4 decision where Neil Gorsuch sided with the four liberals in favor of an immigrant convicted of burglary. Gorsuch’s vote, and his separate opinion in Dimaya, confirms that he is much more a Thomas than he is an Alito. He is willing to hand liberals a small victory on the path to a much larger effort to shift legal doctrines to the right.

The man who occupies the seat that Senate Republicans held open for a year until Donald Trump could fill it has not gone soft — even if he did hand a victory to an immigrant.

So, if you are writing about the Dimaya case, and want to give your readers an accurate picture of what Gorsuch is up to, please don’t do this:

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#Breaking: In a blow to the Trump administration, the Supreme Court declared a clause in federal law that requires the deportation of immigrants convicted of a "crime of violence" to be unconstitutionally vague. https://www.npr.org/2018/04/17/603160263/supreme-court-strikes-down-part-of-immigration-law?utm_source=twitter.com&utm_medium=social&utm_campaign=politics&utm_term=nprnews&utm_content=20180417 …

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 Justice Neil Gorsuch, who was appointed to the bench by Trump last year, sided with the court's liberals in the 5-4 decision. https://www.npr.org/2018/04/17/603160263/supreme-court-strikes-down-part-of-immigration-law?utm_source=twitter.com&utm_medium=social&utm_campaign=politics&utm_term=nprnews&utm_content=20180417 …
11:50 AM - Apr 17, 2018

Dimaya should have been a very easy case. Four years ago, the Supreme Court decided Johnson v. United States, which held that a federal law imposing stricter sentences on people who commit felonies that involve “conduct that presents a serious potential risk of physical injury to another” is unconstitutionally vague. Eight justices voted in the majority in Johnson (although two wrote separate opinions), and Justice Antonin Scalia wrote the majority opinion. This was not a close case.

Dimaya involves a strikingly similar statute to the one in Johnson. Under the law at issue in Tuesday’s decision, a non-citizen is all-but-certain to be deported if they commit a felony that “by its nature, involves a substantial risk that physical force against the person or property.” A bare majority of the Court — the four liberals plus Gorsuch — agreed that this law suffers from the same vagueness problems that plagued the law at issue in Johnson.

Though Justice Elena Kagan wrote the Court’s primary opinion, and Gorsuch joined enough of that opinion to form a majority for the proposition that the immigration statute is unconstitutionally vague, Gorsuch also wrote a separate opinion that provides a great deal of insight into how he views his role as a judge. Moreover, when read in light of Gorsuch’s prior record, his separate opinion in Dimaya suggests that he sees this case as one step in a broader anti-regulatory journey.

Hobbling federal agencies
Dimaya is not the first time Gorsuch has used an immigration case to make a broader statement against government regulation. As a federal appellate judge, Gorsuch wrote two opinions in Gutierrez-Brizuela v. Lynch, a case involving an immigrant who was unfairly jerked around by conflicting decisions by various government decision makers. In his first opinion, written on behalf of a three-judge panel, Gorsuch wrote a relatively narrow decision siding with the immigrant.

Then, in separate opinion joined by no other judge, Gorsuch launched into a rant against the Supreme Court’s decision in Chevron v. Natural Resources Defense Council.

Chevron is one of the most important Supreme Court decisions of the last half-century. It provides that, when a federal agency pushes out a new regulation, and the statute which allegedly permits such a regulation is ambiguous, courts will typically defer to the agency’s reading of the statute unless that reading is outlandish.

Though Chevron was uncontroversial for several decades, it became one of the conservative Federalist Society’s most hated decisions during the Obama years — no doubt because Chevron required a judiciary controlled by Republicans to defer to environmental and labor regulators in a Democratic administration. Gorsuch’s critique of Chevron largely mirrors that of the Federalist Society — that Chevron places too much power in the executive branch and not enough in the legislature and judiciary.

Read more
https://thinkprogress.org/neil-gorsuch-voted-with-the-liberal-justices-ca1cc1e2fae0/