Sessions v. Dimaya: Refusing to Leave “judges to their intuitions and the people to their fate,” Gorsuch Positions Himself as Scalia’s Jurisprudential Heir in Deportation Case

Apr. 27, 2018

Sessions v. Dimaya, 584 U.S. ___ (2018) (Kagan, J.).
Response by Cori Alonso-Yoder
Geo. Wash. L. Rev. On the Docket (Oct. Term 2017)
Slip Opinion | SCOTUSblog

Sessions v. Dimaya: Refusing to Leave “judges to their intuitions and the people to their fate,” Gorsuch Positions Himself as Scalia’s Jurisprudential Heir in Deportation Case

On April 17, 2018, the Court issued its opinion in Sessions v. Dimaya,¹ a challenge to the deportation of a lawful permanent resident convicted of burglary twice in California. Following Dimaya’s second conviction, federal immigration authorities initiated proceedings to remove him from the United States. An immigration judge and the Board of Immigration Appeals ordered Dimaya deported as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii).² Specifically, these lower courts found that Dimaya’s conviction for burglary constituted a “crime of violence” as incorporated into the Immigration and Nationality Act through 18 U.S.C. § 16(b).³

While Dimaya’s appeal of deportation was pending with the Ninth Circuit, the U.S. Supreme Court published Johnson v. United States.⁴ In that decision, Justice Antonin Scalia authored the opinion of the Court, rendering a clause of the federal Armed Career Criminal Act (“ACCA”) void for vagueness under the Fifth Amendment’s Due Process Clause. Relying on the Court’s analysis in Johnson, the Ninth Circuit Court of Appeals overturned Dimaya’s deportation, finding § 16(b) impermissibly vague.⁵

Justice Kagan, in an opinion joined in whole by Justices Ginsburg, Breyer, and Sotomayor, and in part by Justice Gorsuch, affirmed the ruling of the Ninth Circuit, concluding that a straightforward Johnson analysis renders § 16(b) void for vagueness.⁶ Chief Justice Roberts, joined by Justices Kennedy, Alito, and Thomas, dissented, with Justice Thomas filing a second dissent joined in part by Justices Kennedy and Alito.

In the days following Dimaya, considerable attention has focused on Justice Gorsuch siding with the Court’s liberal justices—particularly in a decision that will favor noncitizens convicted of crimes.⁷ As the nominee of a President whose hardline stance on immigration figures as the most enduring plank of his domestic policy platform, Gorsuch’s tiebreaking vote appears to have dealt a major blow to the Administration’s deportation policy.

How is it possible that a nominee selected by an immigration hardliner to replace Antonin Scalia, a staunch conservative and noted constitutional originalist, could arrive at such a result? Introducing Gorsuch as his nominee to the Court in early 2017, Trump announced that, “[Scalia’s] image and genius was in my mind throughout the decision-making process.”⁸ In his acceptance of the nomination, Gorsuch echoed admiration for the late Associate Justice, calling him “a lion of the law.”⁹ When situating Gorsuch on an ideological spectrum, commentators have even argued that his views are more conservative than those of Scalia.¹⁰ So how does one explain Gorsuch’s role in the Dimaya decision?

Despite the initial appearance of liberal partisanship, a closer examination reveals that Gorsuch’s analysis rests on firm conservative jurisprudential ground. Notably, even as he subscribes to the majority view of the immigration statute at issue, Gorsuch scrupulously avoids weighing in on the current immigration debate. For example, he departs from the majority in a section of the Kagan opinion likening deportation to criminal sanctions.¹¹ This is meaningful because analogies between criminal and immigration law have formed the liberal Justices’ arguments for strengthening constitutional rights in past decisions.¹² Gorsuch further clarifies and distinguishes his view in a remarkable concurrence rivaling the length of the judgment of the Court.¹³ True to its author’s conservative credentials, the Gorsuch concurrence is notable for its firm mooring in a textual view of the Constitution that largely ignores the contemporary realities of immigration enforcement.

Opening with a citation to the Declaration of Independence, Gorsuch proceeds to invoke Justice Scalia’s majority opinion in Johnson and spends much of the rest of his concurrence referencing early American legal history to locate originalist support for the void for vagueness doctrine and buttress the result of the Dimaya majority.¹⁴ In doing so, he gently rejects Justice Thomas’s dissenting view that the framers had no conception of the void for vagueness doctrine. Responding in like terms to his fellow conservative Justice’s textual view, Gorsuch writes, “[r]espectfully, I am persuaded instead that void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.”¹⁵ He then proceeds to rely on legal history (including some of the earliest Supreme Court decisions and acts of Congress), as well as decisions and scholarship authored by Scalia, to challenge Justice Thomas’s view of the founders’ intent.¹⁶

In focusing on these sources, Gorsuch largely sidesteps the facts of Dimaya and seems to take pains to avoid addressing immigration law altogether. Take, for example, Gorsuch’s response to the Government’s argument that Johnson is distinguishable from Dimaya because the former involved a criminal proceeding whereas the latter deals with civil immigration penalties.¹⁷ While acknowledging that the Court’s precedent may dictate a less stringent void for vagueness analysis in certain civil contexts, Gorsuch is unpersuaded that this case requires the application of that lesser standard.¹⁸ Yet, instead of exploring Dimaya’s circumstances, Gorsuch constructs a list of other civil penalties with severe consequences, including “confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely.”¹⁹ Notably absent from his examples is any mention of the civil immigration penalty—deportation—at issue in this case. Justice Gorsuch’s meticulous efforts to avoid nearly any discussion of the facts of the case, or to even interpret contemporary immigration law, is readily quantifiable. He devotes a scant two pages of his nineteen-page concurrence to the situation of noncitizens, and even there his analysis focuses on the due process rights and legal position of aliens at the time of the early republic.²⁰ Moreover, the terms “Dimaya” and “immigration” appear a mere three times each in his concurrence.²¹ By contrast, the term “Scalia” appears six times in total.²²

Gorsuch’s intention is both clear and highly remarkable. By citing to the founding documents of the Republic, early Anglo-American jurisprudence, and the writings of the Court’s most celebrated conservative justice, Gorsuch distinguishes his analysis from Dimaya’s plurality. He also simultaneously positions himself as the ideological heir to Scalia, extending the late Justice’s opinion in Johnson while also affirming his own commitment to originalist interpretation. Of course, despite these rhetorical means, in the end, Gorsuch arrives at a place of alignment with his liberal colleagues. In the future, will Gorsuch adhere to the decisions of his predecessor or side with his conservative colleagues on the bench? To summon the words of Chief Justice Roberts in his dissent, Dimaya may signal that Gorsuch is a reliable conservative vote “no más.”²³

Ana Corina “Cori” Alonso-Yoder is the Practitioner-in-Residence and Clinical Professor of Law with the Immigrant Justice Clinic at the American University Washington College of Law. Professor Alonso-Yoder’s commentary on immigration law and immigrants’ rights has been featured by ABC News, The Atlantic, Washington Monthly, and The National Law Journal & Legal Times among others.

1. No. 15-1498, slip op. (U.S. Apr. 17, 2018).
2. See id.
3. See 18 U.S.C. § 16(b) (2012) (defining a crime of violence as an “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”).
4. 135 S. Ct. 2551 (2015).
5. See Dimaya, slip op. at 1.
6. See id.
7. See, e.g., Jonathan Adler, More on Sessions v. Dimaya and Crossover Sensation Neil Gorsuch, Volokh Conspiracy (Apr. 17, 2017, 10:39 AM), https://reason.com/volokh/2018/04/17/more-on-dimaya-v-sessions-and-crossover; Michael Morris, Levin: Gorsuch ‘Absolutely Wrong’ on SCOTUS Immigration Decision, CNS News (Apr. 19, 2018, 12:36 PM), https://www.cnsnews.com/blog/michael-morris/levin-gorsuch-absolutely-wrong-scotus-immigration-decision; Dean Obeidallah, Now What Will Conservatives Say About Gorsuch?, The Daily Beast (Apr. 20, 2018, 5:30 AM), https://www.thedailybeast.com/now-what-will-conservatives-say-about-gorsuch.
8. Full Transcript and Video: Trump Picks Neil Gorsuch for Supreme Court, N.Y. Times (Jan. 31, 2017), https://www.nytimes.com/2017/01/31/us/politics/full-transcript-video-trump-neil-gorsuch-supreme-court.html.
9. Id.
10. See Lee Epstein, Andrew D. Martin & Kevin Quinn, President-Elect Trump and his Possible Justices 8 (Dec. 15, 2016), http://pdfserver.amlaw.com/nlj/PresNominees2.pdf.
11. Dimaya, slip op. at 5–6; id. at 19 (Gorsuch, J., concurring).
12. See e.g., Padilla v. Kentucky, 559 U.S. 356 (2010) (holding, in an opinion written by Justice Stevens and joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor, that a constitutional right to counsel for noncitizens requires counsel to warn their clients of the deportation consequences of criminal pleas).
13. See Dimaya, slip op. (Gorsuch, J., concurring).
14. See id.
15. Id. at 2.
16. See id. at 2–9.
17. See id. at 10–11.
18. See id.
19. Id. at 11.
20. See id. at 12–13 (rejecting Justice Thomas’s suggestion in the dissent that the Alien Friends Acts of 1798 establishes that noncitizens did not possess due process rights at the time of the founding).
21. Id. at 1, 13, 15, 14, 17.
22. Id. at 2, 3, 7, 15.
23. Dimaya, slip op. at 10 (Roberts, C.J., dissenting) (noting that Johnson signified the end of the Court’s efforts to attempt to analyze the vague language in the ACCA).

Recommended Citation Cori Alonso-Yoder, Response, Sessions v. Dimaya: Refusing to leave “judges to their intuitions and the people to their fate,” Gorsuch Positions Himself as Scalia’s Jurisprudential Heir in Deportation Case, Geo. Wash. L. Rev. On the Docket (Apr. 27, 2018), https://www.gwlr.org/sessions-v-dimaya-refusing-to-leave-judges.