Thursday, July 5, 2018

Justice Kennedy's Immigration Legacy


Pratheepan Gulasekaram on SCOTUSBlog considers Justice Anthony Kennedy's immigration legacy.  His conclusion:

"Taken as a whole, Kennedy’s immigration jurisprudence demonstrates that his bold strides towards protecting the liberty and dignity of personhood were limited to some vulnerable minorities, but did not extend to persons covered by immigration laws and policies. His final concurrence in Hawaii, warning that this current president may have exercised discretion in a manner that violated the First Amendment but declining to check that discretion, seems to flow from Kennedy’s earlier immigration decisions. Yet, that result was not inevitable given his habeas and gay-rights jurisprudence. In the end, he was a reliable fifth vote for the conservative majority, fashioning an immigration jurisprudence that vindicated the government’s position against the claims of noncitizens."

I was struck by how few immigration opinions were written by Justice Kennedy. He came from the Ninth Circuit where immigration has been a pressing issue for decades and where Ninth Circuit Judges, such as Stephen Reinhardt, were writing important asylum cases shortly after the passage of the Refugee Act of 1980. Immigration apparently was not a big issue to Kennedy. Justice Kennedy probably wrote more significant gay marriage/rights decisions than immigration decisions on the Court.


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Let's not forget Chadha.

Posted by: anon | Jul 5, 2018 4:03:28 AM

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