The Volokh Conspiracy

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The Supreme Court's Libertarian Wing Squares The Corner

Justices Gorsuch, Thomas, and Barrett won't "endow the Executive Branch with maximum bureaucratic flexibility."


Today, the Supreme Court decided Niz-Chavez v. Garland. The Court held that the government must provide an immigrant with notice of removal in a single document, rather than in multiple documents. The Court split 6-3. Justice Gorsuch wrote the majority opinion, joined by Justices Thomas, Barrett, and the Kagan three. Justice Kavanaugh dissented, joined by the Chief Justice and Justice Alito. There was a spirited discussion about statutory interpretation between Justices Gorsuch and Kavanaugh. It reminds me of Bostock. Justice Gorsuch's fixation on the placement of a quotation mark–which Justice Kavanaugh refers to as the "quotation mark theory"–reminds me of the song Take a Break from Hamilton. Is it "My dearest Angelica" or "My dearest, Angelica"?

There are many ways to explain this split. One possible axis concerns the Court's libertarian wing. Justice Gorsuch alludes to this impulse: the government should not get a free pass to play fast-and-loose with procedural guarantees. He writes:

Perhaps, though, what's really going on here has nothing to do with labels like that. Perhaps there's a simpler explanation. Perhaps when Congress adopted IIRIRA everyone understood that it required a single fully compliant document to trigger the stop-time rule. Perhaps the government has resisted the law's demands only because they leave its officials with less flexibility than they once had. Regardless, when interpreting this or any statute, we do not aim for "literal" interpretations, but neither do we seek to indulge efforts to endow the Executive Branch with maximum bureaucratic flexibility. We simply seek the law's ordinary meaning. 

Dare I say that Justice Gorsuch read the statutory scheme with a presumption of liberty? If one reading makes it harder for the government to harm people, and the other reading makes it easier for the government to harm people, then the former reading should be preferred. Here, the court would not give the government "maximum bureaucratic flexibility."

Justice Gorsuch makes this point more directly in the concluding section of the opinion:

At one level, today's dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law's terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.

The government should not get a free pass to deprive people of their rights. And the last emphasized sentence should ring a bell. Chief Justice Roberts used the exact same passage in DHS v. Regents:

Justice Holmes famously wrote that "[m]en must turn square corners when they deal with the Government." Rock Island, A. & L. R. Co. v. United States , 254 U.S. 141, 143, 41 S.Ct. 55, 65 L.Ed. 188 (1920). But it is also true, particularly when so much is at stake, that "the Government should turn square corners in dealing with the people." St. Regis Paper Co. v. United States , 368 U.S. 208, 229, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961) (Black, J., dissenting). The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This  is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.

What is going on with Justice Gorsuch here? Is he trolling the Chief? Rather than citing Holmes, Black, and Roberts, Gorsuch–as he is wont to do–cites no one. There is some shade being thrown here. And the Kagan three have to go along for the ride.

In any event, the libertarian wing of the Court's six "conservative" members have squared the corner. And I'm glad to see Justice Barrett in this triad. We will likely see these three vote together again.

One final note. Justice Gorsuch in the majority rules for the immigrant, and calls him an "alien." Justice Sotomayor, who has objected to using this phrase before, swallows her pride and joins the majority opinion without dissent. Justice Kavanaugh, who ruled against the immigrant, once again uses the phrase "noncitizen." Justice Alito, who has objected to this neologism, joins the dissent without complaint. Go figure.