Kavanaugh already showing his Trumpist stripes

Supreme Court argument on Wednesday over the detention of immigrants during deportation proceedings seemed to expose a divide between President Trump’s two appointees, Justices Neil M. Gorsuch and Brett M. Kavanaugh.

The question in the case was whether federal authorities must detain immigrants who had committed crimes, often minor ones, no matter how long ago they were released from criminal custody. Justice Kavanaugh said a 1996 federal law required detention even years later, without an opportunity for a bail hearing.

“What was really going through Congress’s mind in 1996 was harshness on this topic,” he said.

But Justice Gorsuch suggested that mandatory detentions of immigrants long after they completed their sentences could be problematic. “Is there any limit on the government’s power?” he asked.

Justice Stephen G. Breyer pressed the point, asking a lawyer for the federal government whether it could detain “a person 50 years later, who is on his death bed, after stealing some bus transfers” without a bail hearing “even though in this country a triple ax murderer is given a bail hearing.”

The lawyer, Zachary D. Tripp, hedged, and Justice Gorsuch grew frustrated.

“Mr. Tripp, we’re quibbling,” Justice Gorsuch said. “Justice Breyer’s question is my question, and I really wish you’d answer it.”

Mr. Tripp eventually responded, “This applies regardless of time.” He added that Congress had intended that harsh result.

“Basically, at the end of the day, Congress’s answer was enough is enough,” Mr. Tripp said. “If you’re an alien, you come here, you commit one of these crimes, you’ve effectively forfeited whatever right you have to remain at large in the community.”
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Justice Breyer said the solution was to allow immigrants detained long after release from criminal custody to have bail hearings. He said those would allow immigrants who were not dangerous and who posed no flight risk to return to their communities. “The baddies will be in jail,” he said, “and the ones who are no risk won’t be.”

Justice Kavanaugh disagreed. “The problem is that Congress did not trust those hearings,” he said. “Congress was concerned that those hearings were not working in the way that Congress wanted and, therefore, for a certain class of criminal or terrorist aliens said, ‘No more.’”