Gorsuch’s Swing Vote— A Stunner— Blocks Hasty Deportations

Justice Neil Gorsuch broke a 4-4 tie between liberal and conservative justices today in a major immigration ruling.

Any alien who is convicted of a violent felony is automatically removable.

But suppose someone is convicted of a “crime of violence,” where no violence actually occurs. 

As Republicans have pushed sensible law-and-order laws to extreme reaches, they have passed laws such the Armed Career Criminal Act. The law has a long list of potentially violent crimes.

Take the case of James Garcia Dimaya, from the Philippines. He was admitted to the United States in 1992 as a lawful permanent resident. In 2007 and 2009, he was convicted twice of breaking and entering a residence. He served two years for each crime for a total of four years.

Under a section of the Immigration and Nationality Act, Republicans had successfully incorporated the language from the Armed Career Criminal Act to widen the sweep of aliens who could be automatically deported.

In 2015, the Supreme Court struck down the Armed Career Criminal Act because it was unconstitutionally vague. Its list of crimes did not enumerate actual violence, nor use of a weapon in commission of a non-violent crime. It simply said that crimes, such as breaking and entering, had so much potential for armed violence that the law would categorically treat simple breaking and entering as a violent crime.

Today, the same question was presented, only with this difference: Was the same language unconstitutionally vague when it is embedded in the nation’s immigration law?

 Four conservatives said there’s no constitutional problem here; four liberal justices said the law should be struck down under the Johnson precedent. 

Justice Gorsuch agreed with the liberal justices.

What does this mean?

First, it will slow down a large tributary of deportation cases that the Trump administration has been rushing to use.

Does this mean Justice Gorsuch will be a moderate? No one knows, but here is some research for perspective. Prof. Andrew D. Martin (University of Michigan) and Kevin Quinn (Cal-Berkeley) have tracked voting patterns among justices.

They find that—contrary to public perception and conservative lore— Justice Antonin Scalia peaked as a conservative vote in 2000; thereafter, he became noticeably more moderate. See this chart:

By the time he died, Justice Scalia was a solid conservative but his overall voting pattern put him in range to side with liberals on a fair number of cases. The most conservative justice is Thomas, followed by Alito.

I think that describes Justice Gorsuch’s probable trajectory—a solid conservative vote who will occasionally cross over to vote with liberals.

It is a good day for America’s constitutional system.