The Skillful Foreshadowing of Neil Gorsuch

The newest Supreme Court justice issued two high-profile opinions that are different in tone but say a great deal about his worldview.

Jim Bourg / Reuters

Justice Neil Gorsuch may have had a slightly awkward first year, but he just racked up a hell of a week.

In his public and judicial personas so far, Gorsuch has seemed a bit tone-deaf and clumsy. Court-watchers have mildly ridiculed his ponderous writing style. And his public appearances in highly partisan venues (including parading around Kentucky as Senate Majority Leader Mitch McConnell’s in-person trophy) have garnered much justified criticism.

But last Sunday, Gorsuch grabbed positive headlines by hiring the Court’s first-ever Native American law clerk, Toby Young, a member of the Chickasaw Nation and former George W. Bush Justice Department aide. (That this has taken until 2018 is, to say the least, a disgrace.) On Tuesday, he issued two skillful high-profile opinions—a concurrence in an important immigration case and a dissent in a death-penalty decision.

In the immigration case, Sessions v. DiMaya, Gorsuch crossed the Court’s invisible party aisle. He voted with the four moderate liberals against the government’s hardline position on a deportation statute. But the move doesn’t suggest ideological softening—in a skillful separate opinion, Gorsuch used the “liberal” result to set up possible conservative victories in the years to come. He also signaled that, despite voting against the government this time, he may plan to vote with it in the far more important “travel ban” case, which will be heard next week.

DiMaya challenged a provision of the Immigration and Nationality Act that requires almost automatic deportation of any alien—documented or not—who is convicted of an “aggravated felony.” That term, according to the statute, includes a serious “crime of violence” as defined in another federal statute, 8 U.S.C. § 16. That statute, in turn, offers two definitions of “crime of violence”; one is any crime that by legal definition includes violence or force (for example, attempted murder); the second definition, contained in § 16(b), covers any serious crime that “by its nature, involves a substantial risk that physical force … may be used in the course of committing the offense.”

DiMaya challenged 16(b), known as the “residual clause.” What does “by its nature” mean? The Court’s five-justice majority, including Gorsuch, said, in effect, that they can’t figure it out either—and a statute that judges can’t understand is, under long-established doctrine, “void for vagueness.” A void statute violates constitutional due process for two reasons. First, it doesn’t provide “notice” of what conduct will violate it; and, second, it permits judges to “make law” by deciding cases based on subjective interpretation alone.

James DiMaya, a native of the Philippines who has been a lawful permanent resident for 25 years, was convicted twice of first-degree burglary in California. An immigration judge ruled that burglary was an “aggravated felony” under 16(b) and ordered DiMaya deported.

But in 2015, while his case was pending, the Supreme Court struck down as vague a provision of another statute, the Armed Career Criminal Act; that provision imposed a longer criminal sentence on anyone convicted of three “violent felonies,” defined as posing “a serious potential risk of physical injury to another.” DiMaya cited that case and brought a vagueness challenge to 16(b); on Tuesday, the majority held that despite slightly different wording, 16(b) is also vague, and void.

In order to apply 16(b), previous courts had said, a judge must analyze how much risk of violence is posed by the “ordinary case” of a given crime. I wouldn’t know how to do that; neither, said the Court majority, do they.

Chief Justice John Roberts wrote a dissent for himself and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito. He pointed out that the wording of the ACCA is different from that of 16(b). For example, the ACCA had used the phrase “serious potential risk,” while 16(b) said only “substantial risk.”Roberts found two other verbal distinctions between the two statutes; the three combined, he claimed, rendered 16(b) not vague. I could explain those too, but, reader, do you really want me to? Word games are never the chief’s best work; I read them so you don’t have to. Kagan good-naturedly wrote that adopting Roberts’s reading “would be slicing the baloney mighty thin.”

The four liberals made an additional point. The government argued that the Court should apply “a less searching form of the void-for-vagueness doctrine” than it had in the ACCA case. The ACCA is a criminal law. Deportation, the government noted, is a civil, not a criminal, matter. Kagan, however, cited Court precedent that “the most exacting vagueness standard should apply in removal [deportation] cases” because deportation “often amount[s] to lifelong ‘banishment or exile.’”

Gorsuch refused to join this part of the opinion. Judges shouldn’t be especially strict in looking at deportation laws, he wrote. Instead, they should be much stricter in looking at everything the government does: “Today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes”—for example, “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 [to detention or hospitalization] against their will indefinitely.” For that reason, Gorsuch said, he would rather “that the criminal standard should be set above our precedent’s current threshold than to suggest the civil standard should be buried below it.”

This locution reflected the Trump administration’s conservative project of reining in the supposedly out-of-control “administrative state”—that is, using the growing conservative dominance of the courts to gradually hobble executive agencies that regulate things like the environment, antitrust, or pharmaceuticals. The sentence above, for example, can be cited in later opinions as justification for striking down such regulations. Gorsuch’s stiletto was skillfully inserted; if I were the administrative state, I’d be nervous.

Gorsuch also hinted that his skepticism of 16(b) does not necessarily carry over to such immigration measures as, hypothetically speaking, presidential “travel ban” proclamations. The government had emphasized the broad power that the political branches have exercised in immigration matters. Gorsuch didn’t disagree. “But to acknowledge that the President has broad authority to act in this general area,” Gorsuch replied, “supplies no justification for allowing judges to give content to an impermissibly vague law.” There’s a hint there of sympathy for that “broad authority” when actually exercised by the president, rather than judges—as, for example, in proclaiming a “travel ban.”

(For the record, Justice Clarence Thomas wrote a lengthy dissent arguing that the 2015 case shouldn’t be followed; that ACCA wasn’t vague and § 16(c) isn’t either; that the void-for-vagueness doctrine doesn’t exist; and that if it does exist it doesn’t apply to aliens.)

In addition to DiMaya, the court also announced its opinion in a death case, Wilson v. Sellers, in which Gorsuch wrote a dissent for himself and Justices Clarence Thomas and Samuel Alito.

Sellers arose under the Antiterrorism and Effective Death Penalty Act, a product of the Clinton get-tough-on crime era. Under AEDPA, federal courts cannot intervene in state criminal matters unless, in essence, the state court has issued a verdict or sentence that is completely unreasonable under the facts or clearly unlawful under the Constitution. The act has, in the words of the legal journalist Lincoln Caplan, transformed federal habeas corpus from a robust remedy into a “withered writ.” Take Tuesday’s case: Marion Wilson was sentenced to death for murder in a Georgia trial court. After his appeals were denied, he filed a state habeas corpus petition (AEDPA doesn’t apply to state courts), arguing that his trial counsel had been ineffective. The state trial court denied relief on this claim, and wrote that even if Wilson’s lawyers had fallen short (it didn’t say they had), those shortcomings had not affected the result. Wilson appealed that decision to the state Supreme Court, which (as state appeals courts frequently do) rejected his appeal with no opinion or explanation.

Wilson then sought federal review. Since there’s no way to judge whether the state Supreme Court’s opinion was reasonable or not, he asked a federal court to read the lower-state-court decision, which relied on “harmless error.” A federal court could then assess whether that holding was reasonable.

The Eleventh Circuit rejected that claim; federal courts need not “look through” a state denial, it said. Thus, Wilson could not win unless he imagined all possible reasons the state Supreme Court might have been thinking of, and showed that every single one of them was unreasonable. He had to “establish that there was no reasonable basis for the Georgia Supreme Court to deny his certificate of probable cause.”

The U.S. Supreme Court, in a 6 to 3 decision, held that this was a bit harsh even for an AEDPA case. A federal court, the majority said, should “‘look through’ the unexplained decision” to the last state opinion that gave an actual reason. It should then “presume that the unexplained decision adopted the same reasoning.” A state could “rebut” that presumption by showing that its court likely was relying on other grounds—if, for example, the defendant had actually argued a different issue in his or her last appeal, that might be enough. But in any case, the defendant didn’t have to rebut every argument in the legal universe.

Gorsuch’s dissent said that AEDPA does not permit a “look through” in such cases. “If this standard seems hard for a habeas petitioner,” he wrote, quoting an earlier case, “‘that is because it was meant to be.’”

Every federal circuit, the majority pointed out, has bought into “look through” except one, the notoriously conservative Eleventh. Nonetheless, so strict is AEDPA that I can’t claim Gorsuch’s decision is outlandish. In fact, both opinions are well written and reasoned, agree with them or not.

It is a most malign coincidence, however, that this dissent appeared on the same day as Gorsuch’s concurrence in DiMaya. The two cases aren’t legally connected, but it is striking that they are quite different in tone about one thing—enthusiasm for the judicial enterprise of adjudicating individual rights.

In DiMaya, Gorsuch argued that courts should be more aggressive in demanding justification when government denies professional licenses or levies civil forfeitures; in Sellers, on the other hand, he demanded that the very same courts should blandly accept a one-word answer when what is at stake is life itself.