The Volokh Conspiracy
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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.
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.
