With the death of Justice Ruth Bader Ginsburg and President Trump’s nomination of Judge Amy Coney Barrett as her replacement, immigration practitioners are understandably wondering what kind of a judge she will be in approaching the many—often thorny, always controversial—immigration-related issues that might reach the Supreme Court.
Several issues decided in a direction favored by immigration advocates could have a different outcome under a more conservative Supreme Court, including the Court’s decisions to overturn the Trump administration’s attempt to end Deferred Action for Childhood Arrivals (DACA), for “Dreamers” who were brought to the United States as children, and to add a question about U.S. citizenship to the U.S. Census. Both decisions rejected the administration’s current position but left room for it to try a different approach.
Other issues that could come before the Court in the near future, depending on the outcome of the Presidential election, include the Trump administration’s public charge rule, intended to ban many who have used public assistance from becoming permanent residents, and temporary protected status. Of course, if Joe Biden is elected President, his administration is likely to review and reverse many Trump administration regulations and policies, and Congress could have an impact also if the House of Representatives keeps its Democratic majority and the Senate flips to the Democrats.
Below are a few selected highlights from Justice Ginsburg’s and Judge Barrett’s legal careers, which may provide some insight into the difference a Justice Barrett could make in the immigration arena.
As part of Justice Ginsburg’s overall legacy of advocating the rights of those historically denied various legal protections, and as the daughter of Jewish immigrant parents, she took positions in favor of immigrants’ rights in landmark cases. In some cases, she contributed her perspective to the majority opinion on the Supreme Court; in others, she was known for her powerful dissents. Below are a few of her accomplishments in the immigration arena:
- She was among five justices who overturned the Trump administration’s attempt to end DACA (DHS v. Regents of the University of California)
- She blocked a state law in Arizona that would require state police to delve into immigration status of anyone detained by them, allow state police to detain any suspected undocumented person, and make undocumented status a state crime (Arizona v. United States)
- She upheld the right of noncitizens to challenge detentions, under the U.S. Constitution (Boumediene v. Bush)
- She defended limits on lengthy, indefinite detentions, including arguing in a dissent in favor of allowing regular bond hearings for immigrants in prolonged detention (Jennings v. Rodriguez, Zadvydas v. Davis,
Barrett’s Philosophy and Opinions
It is not yet clear how a Justice Barrett would rule on immigration issues, as her record on that topic is not extensive. In general, Judge Barrett has been described as a conservative, an originalist, and a textualist, and somewhat deferential to agency interpretations—which may not endear her to immigration advocates—along with being a brilliant writer and legal thinker. A former law professor of hers said she has an “incandescent mind that has won the admiration of colleagues across the ideological spectrum.” He said she “genuinely seeks to understand others’ arguments and does not regard them as mere obstacles to be overcome on the way to reaching a preferred conclusion,” and that she “is not afraid to change her own mind in the search for the truth.” Below are a few of her accomplishments:
- Among other things, she clerked for Supreme Court Justice Antonin Scalia and was a law professor at the University of Notre Dame for 15 years.
- As a judge on the U.S. Court of Appeals for the Seventh Circuit, in June 2020 Judge Barrett dissented on a three-judge panel that voted to stop the Trump administration’s public charge rule in Illinois. In her dissent, she noted that a preliminary injunction was based solely on the district court’s interpretation of the term “public charge.” “Because its analysis was flawed, I would vacate the injunction and remand the case to the district court, where the plaintiffs would be free to develop their other arguments,” she wrote. Judge Barrett also launched into a lengthy discussion of what “public charge” means under various laws and interpretations. She concluded that at bottom, “the plaintiffs’ objections reflect disagreement with this policy choice [of various statutes that rolled back the availability of government aid to noncitizens] and even the statutory exclusion itself. Litigation is not the vehicle for resolving policy disputes. Because I think that [the Department of Homeland Security’s] definition is a reasonable interpretation of the statutory term ‘public charge,’ I respectfully dissent.” (Cook County v. Wolf)
- In a case with an unusual set of facts concerning a U.S. citizen whose wife was denied a visa to come to the United States, Yafai v. Pompeo, Judge Barrett said she had to dismiss their appeal “because the consular officer’s decision was facially legitimate and bona fide.” She said that no more was required, and that the court could not “look behind the exercise of” the consular officer’s decision. She noted that the husband and wife had “failed to make an affirmative showing” that the consular officer had denied the wife a visa in “bad faith.”
With President Trump being treated for COVID-19 and several senators, among others close to the President, recently diagnosed with the disease, it’s unclear how quickly the confirmation process for Judge Barrett will go. She is expected to be confirmed once her nomination is brought to the floor.
Contact your WR attorney for advice in specific situations.
- “Ruth Bader Ginsburg’s Legacy on Immigration,” American Immigration Council, Immigration Impact, https://immigrationimpact.com/2020/09/23/ruth-bader-ginsburg-legacy-on-immigration/#.X3oUctrsa70
- “Ginsburg Hails Immigrants in Speech to New Citizens,” Time (video), https://www.bing.com/videos/search?q=ginsburg+2018+stain+immigrants&view=detail&mid=7717AC9E50DB8BE7E4487717AC9E50DB8BE7E448&FORM=VIRE
- High Court Loses Leading Advocate for Equality, Immigrants,” Politico, https://www.politico.com/news/2020/09/19/supreme-court-loses-equality-immigrants-advocate-418441
- “Immigration Policies Hang in the Balance as U.S. Senate Prepares for Fight Over Ginsburg’s Successor,” Texas Tribune, https://www.texastribune.org/2020/09/25/ruth-bader-ginsburg-supreme-court-immigration-laws/
- “Barrett’s Textualism Could Doom Immigration Challenges,” Law360, https://www.law360.com/articles/1314293/barrett-s-textualism-could-doom-immigration-challenges
- DHS v. Regents of the University of California, https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf
- Arizona v. United States, https://casetext.com/case/arizona-v-united-states-7
- Boumediene v. Bush, https://www.law.cornell.edu/supct/pdf/06-1195P.ZO; see also https://www.law.cornell.edu/supct/html/06-1195.ZS.html
- Jennings v. Rodriguez, https://casetext.com/case/jennings-v-rodriguez-2
- Zadvydas v. Davis, https://supreme.justia.com/cases/federal/us/533/678/
- “Noteworthy Legal Opinions of Amy Coney Barrett, Trump’s Supreme Court Pick,” CBC Radio-Canada, https://www.cbc.ca/news/world/amy-coney-barrett-legal-opinion-immigration-abortion-1.5740721
- “I’ve Known Amy Coney Barrett for 15 Years. Liberals Have Nothing to Fear,” by O. Carter Snead, Washington Post, https://www.washingtonpost.com/opinions/2020/09/26/ive-known-amy-coney-barrett-15-years-liberals-have-nothing-fear/
- “Judge Amy Coney Barrett’s Immigration Jurisprudence: Holding Back an Expansion of Consular Non-Reviewability,” Center for Immigration Studies, https://cis.org/Arthur/Immigration-Jurisprudence-Judge-Barrett-SCOTUS?gclid=EAIaIQobChMIz4feltab7AIVGqSzCh33PAIyEAMYASAAEgLckPD_BwE
- Cook County v. Wolf, https://casetext.com/case/cook-cnty-v-wolf-1?
- Yafai v. Pompeo, https://www.leagle.com/decision/infco20190523114