Justice Scalia opens the 2006 term with a bang.

Justice Scalia opens the 2006 term with a bang.

Justice Scalia opens the 2006 term with a bang.

Oral argument from the court.
Oct. 3 2006 6:28 PM

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Justice Scalia opens the 2006 term with a bang.

Antonin Scalia. Click image to expand.
Antonin Scalia

My cabdriver seems to be taking pains to stick to the back streets on his way to the Supreme Court this morning; he's steering clear of the streets that bound the Capitol Building, as if all the sex/influence peddling/racism scandals sicking up Capitol Hill might somehow cease miraculously at Maryland Avenue. And as the court resumes hearing cases on this first Tuesday of October (Monday having been called on account of Yom Kippur), I find myself relieved, again, to be covering the one branch of government in which the ick factor consistently remains exceedingly low.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Imagining scandalous IMs from the justices to their clerks takes you no further than:

NINO86 (11:55 pm): Hey, did you remember to cite check the latest draft opinion in Gonzales?
ClerkX (11:57 pm): lol. Sure did. Just got that 565 F. Supp. 110, 118 (ND Ga. 1982) in too!!!!
NINO86 (11:59 pm): Kennedy's clerks still trying to work in quotes from Sartre and Baron de Montesquieu every other line? ;)
ClerkX: (11:59 pm) lol. Yup.
NINO86: (12:00 pm) rotfl. Now get back to work.


Laugh all you want at the pompousness and self-importance of the high court, but the justices are—with few exceptions—pathologically cautious about being decorous. And yet one of those exceptions, Justice Scalia, creeps right up to the line again this morning. And, as is always the case, one has to wonder why.

The first case of the term is a pair of consolidated immigration cases— Lopez v. Gonzales, (out of the 8th Circuit Court of Appeals) and Toledo-Flores v. United States (out of the 5th). Both cases turn on a question of statutory interpretation: Lopez and Toledo-Flores were noncitizens convicted for drug crimes that were felonies under their respective state laws, but misdemeanors under federal law. The Immigration and Nationality Act provides that noncitizens convicted of "aggravated felonies" can be deported. The question for the courts is whether "aggravated felonies" should include convictions that are felonies under state law, but only misdemeanors under federal law.

Lopez was arrested in South Dakota for cocaine possession. The INS, appeals court, and the 8th Circuit all agreed that his state drug felony supports deportation under the immigration laws. Toledo-Flores was convicted of the Texas state felony of possessing 0.16 grams of cocaine. The 5th Circuit affirmed his deportation.

Most of this morning's argument is a deathly parsing of the language in the Immigration and Nationality Act's definition of "aggravated felony," 8 U.S.C. § 1104 (43) (B), which sends us back to the definition of a "drug trafficking crime" under 18 U.S.C. § 924 (c). But in order to parse that, you need to close-read the Controlled Substances Act (that's 21 U.S.C. § 802, for those of you who didn't glaze over at the first sight of a §).

This is only really important insofar as several other circuits have adopted the rule that deportation requires that you commit a felony under federal, and not just state, law. The court needs to resolve the split between the circuits. And the problem, as is often the case in disputes over statutory construction, is that the statutory language is ambiguous.

I pause to add that, for those of you who have relied on my crap handwriting and iffy short-term memory as I have written up these dispatches for the past few years, those days are over: The high court has, as of 2:24 p.m. Eastern, already posted today's transcript right here. A constitutional moment. Thus, I state with confidence that the word "ambiguous" is uttered five times today and "ambiguity" twice, including multiple utterances by Justice Stephen Breyer, who finds the statute both "perfectly ambiguous" and rife with "perfect ambiguity." So, what do the courts do with an ambiguous statute? Pretty much what anyone else would do. They fuss themselves into a lather.

Timothy Crooks is the assistant federal public defender representing Reymundo Toledo-Flores and—as his client has already been deported to Mexico—he's in the unenviable position of having to persuade the justices that his case isn't moot. Crooks states that even though his client is no longer in the United States, "he is still subject to the supervised release portion of his sentence." An incredulous Chief Justice John Roberts wonders how a deportee can possibly be subject to his probation conditions if there is no one to supervise him. Crooks replies that his client is still not allowed to "use alcohol, or associate with persons … " (He is interrupted here.)