Justice Sotomayor Expurgates The Word "Alien" From a Justice Marshall Decision

This trend towards legal newspeak troubles me. Any language--past or present--that offends some must be canceled.

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On Monday, the Supreme Court decided United States v. Palomar-Santiago. Justice Sotomayor wrote the decision for the unanimous Court. In this immigration case, she continued to use the phrase "noncitizen," rather than "alien," the term used in the statute. But Justice Sotomayor also did something new (as best as I can recall). She quoted an old decision that used the word "alien," but replaced that word with "[noncitizen]." And she did it in two places.

This Court later held, however, that the statute "does not comport with the constitutional requirement of due process" insofar as it "impose[s] a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the [noncitizen] the deportation proceeding may have been." United States v. Mendoza-Lopez, 481 U.S. 828, 837 (1987). "[A]t a minimum," "a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the [noncitizen] to obtain judicial review." Id., at 839.

Mendoza-Lopez (1987) was written by none other than Justice Thurgood Marshall.

If the statute envisions that a court may impose a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the alien the deportation proceeding may have been, the statute does not comport with the constitutional requirement of due process. . . .

Having established that a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review, the question remains whether that occurred in this case

(For those curious, Kagan clerked with Marshall the following term.)

My co-blogger Eugene writes about expurgation in court decisions. More and more, judges are refusing to quote racial epithets, even when those facts are directly relevant to a case. But Justice Sotomayor's decision is new. Not only will she refuse to use the statutory term "alien," she will alter Supreme Court decisions that used that term–a decision from Thurgood Marshall no less! A bad week for both Justice Marshalls.

This trend towards legal newspeak troubles me. Expurgation was never going to stop with racial epithets. Any language–past or present–that offends will be canceled.

NEXT: DOJ Releases Redacted OLC Opinion Following Review of the Special Counsel's Report

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  1. Correct me if I’m wrong but: Her edit isn’t even accurate. All aliens are noncitizens, but not all noncitizens are aliens, such as our friends in the American Samoa (who are non-citizen nationals). So even if someone wants to take the position that alien gets cancelled because it’s not pure enough for the glorious revolution, we should pick some other term or just make one up.

    1. Would the statute apply to American Samoans?

      1. If the statute says “alien”, that by definition excludes US nationals. US nationals may become citizens, but are neither citizens not aliens.

        1. Ah I misread OP’s comment and reversed the inclusion. My bad!

        2. This is an excellent point. “Noncitizen” simply isn’t an equivalent of “alien,” and non-citizen nationals exemplify the difference. In using the term, Justice Sottomeyor and a unanimous Supreme Court signal a view that non-citizen US nationals are to be regarded, and treated, just like aliens.

      2. All woke is Chinese Commie Party. This vile Justice must be impeached. She is an internal collaborator with our enemy.

        If you believe in prayer, pray a painful cancer starts in her pancreas and takes her as quickly as possible.

        1. We should start mzking people choose between Chinese money and their lives.

    2. Looks like that changed last year: JOHN FITISEMANU v. UNITED STATES OF AMERICA.

      But that’s under appeal right now.

    3. According to 8 USC § 1101(a)(3), “The term “alien” means any person not a citizen or national of the United States.”

      1. Then OP is correct. Negation of disjunction is conjunction of negation.

    4. This happens all the time. Supreme court uses African American to describe black people not the word negro, or other like Dred Scott and the constitution describe african Americans. Not to mention the ugly names used in the early decision involving native americans.

  2. She used brackets. What’s the big deal?

    1. It certainly makes the decision tougher to read, especially for a reader that doesn’t know what the original quote is, and isn’t sure what her purpose is.

    2. I assume the big deal is that she didn’t just quote the passage unaltered. If she’d altered it without the brackets it would have been a cosmically big deal.

      It’s also somewhat dodgy what she did with the second quote.

      “[A]t a minimum,” “a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the [noncitizen] to obtain judicial review.”

      Looking at the actual decision:

      ” Depriving an alien of the right to have the disposition in a deportation hearing reviewed in a judicial forum requires, at a minimum, that review be made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense. [Footnote 17]

      B

      Having established that a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review, the question remains whether that occurred in this case.”

      She elided a paragraph break, and in so doing changed the meaning of the quote.

      This is serious stuff.

    3. That was to indicate that her Quote is not actually a Quote

  3. Justice Marshall wasn’t sufficiently woke. His bad.

  4. Impeach this woke court. All of them are Americahwte agents of our enemies.

  5. Lol. What a freak show.

  6. I can’t wait for her to refer to the “{Noncitizen} and Sedition Acts.” Or the Caleb Carr novel, “The {Noncitizen}ist.” Or writes about “{noncitizen}” life forms from another planet.”

    1. ALF becomes NLF
      E.T. the Noncitizen
      Or that movie and TV series from the late 80s early 90s, Noncitizen Nation
      And of course, Sigourney Weaver in Noncitizen and Noncitizens etc.

      Noncitizen Kane?

    2. Or “Illegal Non-Citizen” by Genesis.
      https://www.youtube.com/watch?v=_61hzuGGJX0

      It’s no fun being an illegal non-citi-zuuun . . .

  7. While Winston Smith goes to work on old case law, originalists should not forget the woke takeover of the dictionary industry.

    It can no longer be reasonably assumed that even a formerly reputable dictionary records the ordinary current meaning of words, rather than a woke redefintion of them.

    In 2040, or even in 2022, glancing at a 2021 dictionary for inspiration as to what a word meant way back in 2021, is going to be a dangerous game.

  8. So a judge thinks that a noncitzen is not an alien?

  9. If she’s offended by alien, the correct replacement is not non-citizen, but “foreign national.”

    1. Is a stateless person a “foreign national” ?

    2. CNN banned “foreign” 20 years ago. Good luck with that.

    3. but that does not fit her political agenda

  10. So, the big lie, by the ‘wise latina’?

    1. the DUMB latina….

  11. I can’t wait for her cancellation to be unexpurgated in a few decades:

    ,,,the rights of the [alien] the deportation proceeding…

  12. Citizens of subjects of foreign states, stateless persons, and extraterrestrials.

  13. Maybe she was concerned that people today would think Marshal was talking about extraterrestrial creatures?

    1. They aren’t citizens or US nationals either, so I don’t think it would effect their legal standing.

  14. BOWDLER, J., delivered the opinion for a unanimous Court.

  15. It’s just like referring to a fetus as a baby.

    1. More or less, if the statute or the prior judgement says “fetus” and you insist – in an actual legal opinion – on swapping it out for “baby.”

      I’m not sure the beef here is with the particular content of the swap, it’s with the fact of the swapping.

  16. Words have meaning. Words in statutes, rules, regulations even have defined meaning sections. I’m not sure which is worse in a litigation environment changing a word on the printed page or ignoring a word on the printed page. I have been a transactional attorney for over 30 years. I never understood the lengths litigators would go to argue their point. “Shall” means only if I want to. I am happy to argue over the meaning of a specific word in the context of the transaction/document. I can not understand ignoring the existence of a word in a document. Actually quoting a sentence and omitting a word in the quote without some reference to the omission. At what point is the omission or change from what is actually IN the law/statute becomes a subversion and obfuscation of the law.

  17. The problem here is that “unanimous Court”; There shouldn’t have been unanimity, her majority decision should have been subject to concurrences that agreed with the conclusion, but mocked her altering the Marshall quotes. It should have been made clear to her that was going to happen if she insisted on doing this.

    But that didn’t happen. She didn’t get enough internal push-back, so this particular cancer will spread.

  18. A federal district judge I practice before always uses the lower-case “c” for court, including by writing “[c]ourt” if he’s quoting an opinion.

    Do you think that is objectionable?

    1. It doesn’t change the meaning any, unlike this case, unless maybe the [c]ourt in question is the [s]upreme [c]ourt.

      1. It certainly doesn’t change meaning in the sense that it doesn’t change a holding/finding. But it is expressive–it indicates that the judge doesn’t hold the same view of decorum or the respect to which a court is entitled.

        I don’t say this in a negative way–I think it’s thoughtful, and reasonable minds can differ as to how we address/treat judges and courts. But it always struck me as unusual.

  19. The opinion was unanimous. And it was conservative. It made clear the law will be strictly followed completely independently of whether the result is considered fair, and there will be no lenient constructions in favor of aliens or judicially-created exceptions.

    In order to get a unanimous opinion clearly establishing a conservative principle, and one written by one of the court’s most liberal justices, it’s understandable that Chief Justice Roberts would in exchange concede on some wording issues that don’t affect the overall meaning or result.

    1. I wrote this without thinking about the difference between “non-citizen” and “alien,” i.e. non-citizen U.S. nationals. The word change changes the meaning in an important way. And by changing the wording in quoting precedent applicable to a different context, it signals that non-citizen U.S. nationals are to be treated as aliens for all purposes – something that I imagine Justice Sottomeyer and the Court didn’t think about either.

      I think the opinion should be corrected. Grouping all non-citizens into a single category misstates non-citizen U.S. nationals’ legal status and rights, and ignores the fact that they are often very different from aliens’. It is just plain erroneous as a statement of law.

      1. “And by changing the wording in quoting precedent applicable to a different context, it signals that non-citizen U.S. nationals are to be treated as aliens for all purposes”

        Alternatively, it signals an intent to start treating aliens as though they were non-citizen U.S. nationals… Which I would find not entirely an implausible intent on her part.

        1. In the case, the 9th circuit had found for the alien on grounds the outcome was onviously unfair. The opinion reiterated that inmigration law is to be construed strictly according to what the statute says, and courts shouldn’t concern themselves with whether the outcome is fair or not.

          It’s by no means clear to me that such thinking applies in the same way to US nationals, or that Justice Sottomayor would want it to.

  20. This doesn’t bother me in the least.

    In my practice, I might have occasion to quote an old decision that refers to a person or company who was subject to particular chapters of the old Bankruptcy Act as a “bankrupt.” The 1978 Bankruptcy Code did away with the distinction between a “bankrupt” and a “debtor,” and nobody uses “bankrupt” as a noun in modern practice. So unless the former distinction between “bankrupts” and “debtors” was somehow important to the original case, I’d probably replace “bankrupt” with “[debtor]”.

    If Justice Sotomayor considers “noncitizen” to be a clearer, or more modern, or gentler, or otherwise superior word than “alien,” then I don’t see what the issue is. The brackets show that she’s made an emendation, she hasn’t changed the meaning of the text, and an interested reader can look up the original if they care.

    Justice Marshall also consistently used the word “Negro”, although he eventually shifted to “Afro-American”. That doesn’t mean that an opinion written today should use either of those old-fashioned (and in the latter case, faddish) words. If there is a need to quote a Marshall opinion that uses either one, a justice or judge might reasonably find it appropriate to use a more contemporary word in brackets. I would probably favor “African-American” out of respect for Justice Marshall’s idiosyncratic dislike for “black”.

    Incidentally, this has nothing to do with the expurgation of racial epithets in opinions. I tend to agree with most of the VCers that a court should not expurgate racial epithets when they are relevant to the subject of the case.

    1. That doesn’t mean that an opinion written today should use either of those old-fashioned (and in the latter case, faddish) words.

      It does if they’re quoting the earlier opinion.

    2. “Justice Marshall also consistently used the word “Negro”, although he eventually shifted to “Afro-American”.”

      Except that the two terms are not equivalent. One refers to race, the other is geo-political. An african-american in canada would there be african-canadian.

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