Ginsburg Leaves Legacy Of Due Process For Immigrants

(September 21, 2020, 9:28 PM EDT) -- Justice Ruth Bader Ginsburg, who died on Friday after serving on the U.S. Supreme Court for nearly three decades, leaves behind a legacy of calling for due process rights for immigrants and accountability for law enforcement agencies.

A New York native and daughter of a Jewish immigrant from Russia, Justice Ginsburg often voted in favor of recognizing constitutional rights and preserving protections for immigrants in major immigration cases, joining dissents that rebuked the indefinite detention of immigrants and President Donald Trump's travel ban.

And while she authored few majority opinions in immigration cases herself, she provided key votes, joining the majority to halt the Trump administration's attempts to end the Deferred Action for Childhood Arrivals program and add a citizenship question to the U.S. Census.

Immigrant advocates and legal scholars say that her commitment to civil rights — in particular, advocating for gender equality under the law — is reflected in her record on immigration.

"I think that she saw herself as a champion for all women, including immigrant women," said Iman Boukadoum, an attorney and senior manager at the Leadership Conference on Civil and Human Rights. "She just had a really strong civil rights record, period, and civil rights include immigrant rights."

Pro-Immigrant Votes

The longest-serving liberal justice on the high court, Justice Ginsburg frequently ruled in favor of recognizing rights for foreign citizens.

Earlier this year, she penned an unequivocal dissent joined by her three liberal colleagues, writing that the U.S. "unquestionably" has jurisdiction to apply its own law to a case brought by the family of a Mexican teenager who was fatally shot across the Southern border by a U.S. Border Patrol officer.

The majority declined to allow the teenager's family to seek money damages from the agent under a remedy known as Bivens , which allows individuals to bring damages suits when federal officers violate their constitutional rights. In this case, known as Hernandez v. Mesa , the teenager's family claimed that the Border Patrol agent had violated the boy's Fourth Amendment rights. 

Justice Ginsburg wrote that she would have extended the Bivens remedy to this context. She also pointed to a past history of complaints alleging misconduct by Border Patrol agents. 

"It is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing," she wrote in the February dissent. "I resist the conclusion that 'nothing' is the answer required in this case."

Boukadoum said this is one of Justice Ginsburg's dissents that most struck her.

"She really believes in accountability for law enforcement," she said.

The justice also consistently opposed the indefinite detention of immigrants in U.S. Immigration and Customs Enforcement facilities.

In 2001, she voted with the majority in Zadvydas v. Davis to find that immigrants cannot be detained indefinitely, siding with an immigrant who had been ordered deported but was left in detention for more than six months while the U.S. was unable to executive the removal order.

Two years later, in Demore v. Kim , Justice Ginsburg joined a dissent that disagreed with the majority's holding that legal permanent residents facing deportation over criminal convictions may be detained without a bond hearing. In that dissent, now-retired Justice David Souter wrote that the government's insistence on detaining a permanent resident "when there is concededly no reason to do so forgets over a century of precedent acknowledging the rights of permanent residents, including the basic liberty from physical confinement lying at the heart of due process."

Most recently, in 2018, Justice Ginsburg signed her name on a dissent authored by Justice Stephen Breyer arguing that the federal immigration statute requires the federal government to give bond hearings to immigrants subject to mandatory detention who have been held in custody longer than six months, after the majority found otherwise.

She also voted in favor of immigrants who were fighting deportation after being convicted of crimes, including in a recent ruling that struck down immigration law's "crime of violence" label as too broad.

"I think she's helped shape immigration law, particularly on issues like due process and improper holding of immigrants," said Elliot Mincberg, a senior fellow at progressive advocacy group People for the American Way. "Justice Ruth Bader Ginsburg is a force for justice and equality across the board … [and] immigration and the rights of immigrants are certainly included there."

Other major immigration votes include her 2012 vote to strike down key provisions of Arizona's S.B. 1070, which made it a crime for an immigrant to be employed without work authorization or to not carry their papers at all times, and her votes against efforts to exclude immigrants when drawing political districts.

In addition to her vote last year against the Trump administration's effort to ask about citizenship on the 2020 Census, Justice Ginsburg wrote the court's opinion in a unanimous 2016 ruling rejecting an effort by two Texas voters to challenge the state's plans to consider total population, rather than registered voters, in redistricting.

An Infrequent Author

While Justice Ginsburg could generally be counted on to side with her liberal colleagues on immigration issues, she rarely wrote majority opinions on immigration cases on her own, and she hasn't shown herself to be as staunch an advocate for immigrants as Justice Sonia Sotomayor, experts say.

For example, in her final immigration ruling before her death, Justice Ginsburg voted with the 7-2 majority to deny habeas review to asylum seekers facing fast-tracked removal proceedings.

Justice Sotomayor, joined by Justice Elena Kagan, wrote a scathing dissent warning that the majority's decision "paves the way toward transforming already summary expedited removal proceedings into arbitrary administrative adjudications." But Justice Ginsburg chose to join Justice Breyer's concurrence, which agreed with the majority's core holding but lamented the ruling wasn't more narrow.

Charles Roth, director of appellate litigation at the National Immigrant Justice Center, said that he believed that concurring opinion may indicate that Justice Ginsburg had urged the majority, unsuccessfully, to avoid the farther-ranging consequences of its ruling. 

"I think she and Justice Breyer were trying to get the court to a place where a decision wouldn't have been quite as sweeping as the one that was written, and it didn't work, unfortunately," Roth said.

Her reluctance to write on immigration herself, though she could have as a senior-ranking justice, "does suggest that that wasn't her passion," according to Kevin Johnson, dean of the University of California, Davis School of Law.

"I think she's probably more moderate on immigration and immigration rights than somebody like Justice Sotomayor, for example, and I don't think that immigration was one of her passions," he said. "I wouldn't read too much negative into her positions on immigration. I just couldn't see her as a champion for immigrants like she was a champion for women."

Mincberg, however, saw her frequent silence on immigration as a demonstration of her "judicial modesty" and respect for her colleagues.

"When there's an issue that she knows one of colleagues is very concerned about, like the Muslim [travel] ban, she was all too willing to defer to a justice like Sotomayor," he said, referencing Justice Ginsburg's decision to join Justice Sotomayor's dissent from the high court's 2018 ruling in Trump v. Hawaii.

However, while she may not have often lent her own voice to immigration rulings, Justice Ginsburg spoke publicly to praise immigrants' contribution to the U.S. While speaking at a naturalization ceremony in 2018, she recounted her own story as the daughter of a man who immigrated to the U.S. as a child and of a woman who was born to immigrant parents who had passed through Ellis Island.

"We are a nation made strong by people like you," she said, addressing the crowd of naturalizing citizens. "My father and my grandparents reached as you do for the American dream. As testament to our nation's promise, the daughter and granddaughter of immigrants sits upon the highest court of the land."

What's Next?

Immigrant advocates fear that the vacancy left by Justice Ginsburg on the high court could result in more court rulings upholding the Trump administration's immigration policies, which have aimed to limit the availability of asylum in the U.S. and to curb legal immigration.

In the absence of Justice Ginsburg, Chief Justice John Roberts will also likely no longer find himself as the swing voter on the court, as he had been in major immigration cases like the high court's June ruling preserving DACA, which provides work permits and deportation protections to young unauthorized immigrants who were brought to the U.S. as children.

"Generally, the big effect that this vacancy and the replacement will have is, it most likely will not let Roberts change the outcome by going to the other side in immigration cases," said Christopher Hajec, director of litigation at the Immigration Reform Law Institute, which advocates for less immigration.

Previously, immigrant advocates, assuming the liberal justices would side with them, typically needed to convince only one Republican-appointed justice.

"To try to get two justices to come over to that side is going to be much harder," said Roth of NIJC.

The high court is expected to soon consider Trump's decisions to reallocate defense funds toward a border wall, to terminate temporary protections for hundreds of thousands of immigrants in the U.S., and to roll back DACA.

"So many of the illegal actions that the president has taken are still winding their way through the courts and are going to end up most likely in front of the Supreme Court in the next year or two," said Anu Joshi, vice president of policy at the New York Immigration Coalition. "It's frightening to think that we won't have that voice, that moral clarity, that Justice Ginsburg provided."

--Editing by Alanna Weissman and Emily Kokoll.

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