The Perils of Supreme Court Intervention in Previously Technical Immigration Cases

The post-Kennedy Court has altered its approach to immigration law issues that the Court previously treated as technical. Surveying cases from 2001 through 2018 of technical issues related to the deportability and relief eligibility of noncitizens with past criminal convictions, this Article shows that the Court often ruled unanimously either for or against the noncitizen and that relatively few cases were decided on conventional ideological grounds. Since Justice Kennedy’s retirement, however, the two first highly technical cases concerning eligibility for relief from deportation for noncitizens with convictions were decided on conventional ideological grounds. Furthermore, the Court’s opinions show a disdain for past precedent and methodological approaches that have protected noncitizens from harsh readings of these laws. Recent cases have also gone beyond the position adopted by the government, either in its briefs or in published agency precedent. The result is a situation in which plenary review in the Supreme Court threatens the rights of noncitizens and, at times, the policy positions of the Biden Administration. 

This Article argues that the perils of plenary review in the Court coupled with an executive branch that professes to be more sympathetic to noncitizens create obligations for counsel, potential amici, and government counsel. Counsel should consider the downside risks of plenary review as well as opportunities to advocate for alternative solutions that would help individual clients or resolve a circuit split favorably outside of Court intervention. Amici organizations should recognize that the downside risks of plenary review can be far greater than the narrow issues presented in a specific case. They should consider how any case is an opportunity for the Court to reach beyond the issues squarely presented in a case and compromise interests of noncitizens. Government counsel should recognize the risk that any case before the Court can lead to rulings that extend beyond those advocated by the government. They should further vet positions adopted in the lower courts in defense of agency decisions and reconsider litigation positions that are not warranted.