“But the Supreme Court” was the rallying cry for Trump supporters in the 2016 election. This was replaced by, “But Gorsuch” after President Trump's appointment of Neil Gorsuch to fill the vacant seat of Antonin Scalia last year. Imagine the consternation then when Justice Gorsuch joined with the liberal wing of the Court to rule against the Trump Administration this week in a prominent immigration law case.
In truth, Gorsuch's ruling is exactly what should have been expected from a strict constructionist jurist. This is what most Republicans have claimed to want on the bench, but, unlike judicial activists, a constructionist judge can be expected to rule against partisan interests when the facts of the case require it.
This was the case in Sessions v. Dimaya. A legal immigrant from the Philippines, James Dimaya, was convicted of two burglaries. The Trump Administration ordered Dimaya's deportation under a federal law that requires mandatory removal of any immigrant convicted an “aggravated felony.” The law refers to the definition of “aggravated felony” in the US Code, which is a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The Trump Administration's position was that Dimaya's two nonviolent burglaries were aggravated felonies under the law. In a 5-4 ruling, the Supreme Court held that the definition of “aggravated felony” was unconstitutionally vague.
The ruling, even though it did not include most of the Court's conservatives, was directly in line with how Justice Scalia would have likely ruled. In fact, the ruling in Sessions v. Dimaya follows a precedent in which Justice Scalia wrote the opinion for a unanimous ruling. In Johnson v. United States (2015), the Court ruled that a similar definition of “violent felonies” was also too vague.
In both cases, the justices resisted the temptation to fill in the blanks and decide what Congress meant when it established the statute. Even though many conservatives would have been pleased if the two cases had been decided differently, if the Court had presumed to know the intent of the legislators who wrote the law they would have been guilty of legislating from the bench, something conservatives purport to abhor.
Scalia was a strong opponent of trying to divine what legislators meant when they crafted laws. In a different dissent, Scalia famously railed against the practice, which often leads justices to rule based on their own opinions rather than the letter of the law, saying, “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
“If you think aficionados of a living Constitution want to bring you flexibility, think again,” Scalia explained in a different speech. “You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.”
If the Trump Administration wants to deport burglars, it should persuade Congress to pass a law that explicitly says immigrant burglars should be deported rather than trying to redefine burglary as a violent crime.
The Supreme Court's ruling in Sessions v. Dimaya may have been a loss for the Trump Administration, but it was a sorely needed victory for the rule of law. It should inspire Congress to be more specific in new laws and leave less room for interpretation by prosecutors, judges, bureaucrats and presidents.
It looks more and more like Neil Gorsuch will be the kind of justice that America needs.
Originally published on The Resurgent