The weird double life of the Supreme Court is shown in stark relief at this time each year as the written decisions dwarf the workaday business of oral argument. This sense—that what the court is writing each day in April is far more important than what it's hearing—is reinforced again this morning as the permanent press corps swarms the gallery at 10, listens intently as the decisions in the Seatbelt Mamma (Atwater v. Lago Vista) and English-only (Alexander v. Sandoval) cases are read from the bench, then evacuates at 10:15 in order to file stories before noon.
Possibly the teen-agers and tourists who line up all morning to witness a few minutes of argument in today's pair of immigration cases feel as though they are witnessing law being made. But the frenzy created by the court's written decisions confirms that law is actually made in closed conferences and through late-night redrafts with law clerks. Oral argument is just Kabuki.
Which leads me to the following warning: If ever you are given tickets to a Kabuki performance about statutory construction, congressional intent, and the meaning of the word "removable" in the Illegal Immigration Reform and Immigrant Responsibility Act, pass, even if they promise lots of bloodshed and miming and stuff.
The American Civil Liberties Union's Lucas Guttentag is here today representing two different groups of criminal aliens facing imminent deportation under the IIRIRA (which is called, variously, 'IRARA or however you say it' and 'however you pronounce that statute' by the justices). IIRIRA and the Antiterrorism and Effective Death Penalty Act, were, respectively, 1997 and 1996 congressional attempts to remedy perceived softness on crime and criminal aliens with wildly overcompensatory statutes that disemboweled the attorney general, the judiciary, and any other nefarious agent of due process seeking to review death penalty and deportation cases. IIRIRA expressly barred judicial review of a deportation order and also gutted a provision allowing the attorney general to waive deportation under certain circumstances. The aliens in the first case, Calcano Martinez et al. v. INS, each sought waivers of deportation after a felony conviction, and they were all told by the Board of Immigration Appeals that the waivers had been repealed under IIRIRA. The courts went on to tell them that they had no jurisdiction under the act to review these decisions.
The alien in the second case, INS v. St. Cyr, adds a wrinkle to the jurisdictional argument. Enrico St. Cyr claims that because his felony was committed prior to the enactment of IIRIRA, and because he entered a guilty plea prior to its enactment, the statute should not be used to deport him or to deny him judicial review. At the time he pleaded guilty, more than half of the deportees applying for waivers were permitted to stay. St. Cyr claims he counted on that when he accepted the plea.
It might all sound tremendously arcane, but it does raise some smashing questions about Congress' ability to hamstring those wacky liberal judges, and more profound legal questions about what one is to do when Congress cheerfully enacts draconian, unfair legislation, then joyfully stands behind it as necessary in the war on crime.
For two hours of argument, first on the jurisdictional issue and then on the retroactivity case, the court puts Guttentag and Deputy Solicitor General Edwin Kneedler through their paces. Justice Kennedy gets sloppy-semantic over whether there can even be a "final deportation order" under the statute if the attorney general refuses to exercise his discretionary authority to waive it. When Kennedy suggests to Guttentag that this might be a winning argument for his side, Scalia needs to interject that "the reason you didn't make that argument is that it isn't a very good one."
Guttentag does concede that Congress could permissibly limit the scope of judicial review of a deportation order. He simply urges that some form of review is necessary. Kneedler insists otherwise. These criminal aliens had full access to the appeals process in their criminal trials. They have no right to judicial review in the deportation process. Kennedy asks what happens if there's a very serious error or violation in the process that's being collaterally reviewed while the alien is being deported. Kneedler almost cackles as he lets loose the flying monkeys: "My assumption is that some court could stop it ... some court would probably review it." You can almost hear him whisper, "Or not, who cares? Congress sure didn't."
The court wonders collectively whether every grant of discretion is reviewable by a court. Scalia offers the example of a presidential pardon as a nonreviewable discretionary act. He doesn't say it, but you almost hear him whisper: Not yet.
Guttentag seems to make a little more headway with the facts in St. Cyr. Perhaps because Justice Breyer goes out of his way to hypothesize the sympathetic double felon facing deportation. He's 45. He provides for his entire family. He once stole a pair of tennis shoes in Massachusetts. Then he stole some fruit from a train (fruit from a train?). He doesn't say it, but you can practically hear, "He stole the fruit to feed the dying orphan he had taken into his Dumpster." Well, says Breyer, "wouldn't you want to give him a shot?" He wouldn't have done that whole fruit-train thing all those years ago if someone had told him he'd be deported subject to a 1996 act. "Why should we pick up people who are 60 years old, who have families, who in youth committed indiscretions?!"
Breyer almost sobs. It oughtta be a movie on Lifetime Television for Women.
The court bats around the language of Landgraf v. USI Film Products—the case that set up the test for retroactivity. The first prong of the test is whether Congress explicitly intended the statute to be retroactive. The bizarre second prong holds that statutes shouldn't be applied retroactively if "new legal consequences" attach to acts committed before enactment. (Suggesting that the only permissible retroactive laws are identical to the laws they've replaced ...)
There's a good deal of bickering about whether felons have the right to expect to have their deportations waived, or if, to quote Scalia, the guy stealing the shoes isn't really thinking about whether the attorney general might let him stay in the country following his deportation hearing. Somehow, felons are always rational calculating actors when Congress is contemplating stricter drug-sentencing legislation. But not when Scalia has them shoplifting Nikes. Still, on rebuttal, Guttentag seemingly takes his cue from Breyer and offers an emotional plea for a man who's supported his family, committed one little offense, and done nothing wrong since then (sob) ...
Oh, and in a nod to the news, today's big decisions represent more of the court's trademark 5-4 battles to stick it to the little guy. Except that Justices Souter and O'Connor switch sides in Atwater—the case of the Texas mother who was stopped by the police for violating a seatbelt law, then arrested and cuffed in front of her children and briefly jailed. Souter's opinion sympathetically touts "Atwater's claim to live free of pointless indignity," before announcing that the Fourth Amendment does not protect against warrantless arrests for misdemeanors punishable only by fines. Weirdly, the sob story may be enough to grab O'Connor, whose ferocious dissent in Atwater is animated almost exclusively by the horrifying sob story from the plaintiff.
Finally, and for the Fraysters in our midst, with all the endless speculation about who will be retiring from the court this summer, does anyone have any thoughts as to who'd get voted off first were they to resolve this in a civilized Survivor fashion?