The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


SG Confesses Error on Secret Immigration Docket, SCOTUS GVRs

Thanks for Marcia Coyle for tracking down the Solicitor General's confession of error, which was not publicly available


On Monday, the Supreme Court's Order List included the following entry:


The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of the confession of error by the Solicitor General in his brief for the respondent filed on March 6, 2020.

The Supreme Court's docket did not include a link to the government's confession of error. Why? As a general matter, the federal courts do not offer public access to immigration dockets. Professor Nancy Morawetz writes about the complicated history of those rules here. On Monday, Professor Morawetz lamented that the SG's confession was not available to the public:

The net result is that the Department of Justice, which succeeded in persuading the Eleventh Circuit to dismiss Mr. Brown's case, has engineered a reversal of that decision that does not in any way make the Department answerable for the position it took below. Meanwhile, the positions of the Justice Department and the ways that they deprive pro se individuals of their opportunity for judicial review are unavailable to the public.

It is particularly galling that the details of this case are not public. What we know from the 11th circuit decision is that Mr. Brown, like far too many immigrants, has been forced to litigate his right to remain in the country without counsel and from inside a prison. He had trouble accessing the courts and with the remand is able to pursue some undefined relief at the Eleventh Circuit. But even after going as far as the Supreme Court to vindicate his rights, the arguments that were used to keep him from accessing the courts remain shrouded in secrecy.

Thankfully, we now have access to the brief. Credit goes to Marcia Coyle at the National Law Journal. SG Francisco wrote:

The petition for a writ of certiorari should be granted, the judgment of the court of appeals vacated, and the case remanded to the court of appeals for further proceedings in light of the submission in this brief regarding the Board's error and the Board's February 27, 2020 reissuance of its decision denying reconsideration.

Professor Morawetz writes that the public should have access to such documents.

It remains problematic that the route to a timely copy of an Solicitor General (SG) confession of error is through a nationally prominent legal reporter, but this blog focuses instead on what this filing shows.

I agree.