The deciders.

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The Beauty of an Eight-Justice Supreme Court

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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What would the Supreme Court look like if ideology didn’t matter? We’re finding out this term. Since Justice Antonin Scalia's death in February, it's impossible for the court to land on its common 5-4 split. Now the justices -- and we -- can pay close attention to cases where the vote breakdown is much harder to explain. A case in point is Thursday’s decision clarifying what kind of “aggravated felony” can get an immigrant deported.

Justice Elena Kagan wrote for a majority of five that included two liberals and three conservatives. Justice Sonia Sotomayor, who has emerged this term as the court’s most liberal member, wrote a dissent joined by Justice Clarence Thomas, the most conservative -- and Justice Stephen Breyer, the court’s resident pragmatist, whose vote here is almost incomprehensible.

The issue in the case, Luna Torres v. Lynch, was one of statutory interpretation. The Immigration and Nationality Act, enacted in 1952, says that an immigrant alien can be deported if he or she has committed one of a series of listed “aggravated” felonies under federal, state or foreign law. The list in the statute refers to federal law felonies.

As a general matter, the courts determine whether a foreign or state felony counts by comparing the elements of that crime to the relevant similar federal crime. Ordinarily, all of the elements have to be there for the crime to count.

But a good number of federal crimes include what’s called a “jurisdictional hook” that makes them federal. Typically, the hook specifies that some part of the crime is substantially connected to interstate commerce -- either a person or an object has moved across state lines.

The reason for the hook is that, under the Constitution, Congress can’t just outlaw anything it wants. It needs a specific source of constitutional authority to pass laws.

One of the most valuable sources of such authority is the commerce clause, which says Congress has the authority to regulate interstate commerce. That clause was interpreted expansively by the courts between 1942 and 1995. In the 1995 case of U.S. v. Lopez, the court limited the reach of the clause. In response, Congress became more vigilant about adding jurisdictional hooks to its criminal statutes.

State and foreign crimes don’t have jurisdictional hooks in them, because they don’t need them. The states have plenary authority to pass any laws they want provided they don’t violate a specific protection contained in the state or federal Constitution.

The specific question in the Luna Torres case is whether the presence of a jurisdictional hook in the definition of a federal crime means the the analogous state crime doesn’t count as an aggravated felony for purposes of the immigration laws. After all, if the federal crime has an element not contained in the state crime, then the two definitions aren’t identical.

Kagan rejected that notion. She explained that the Immigration and Nationality Act must logically mean to include analogous state and foreign felonies with the same substantive provisions. And she pointed to a long tradition of distinguishing jurisdictional elements of criminal statutes from those specifying the content of criminal behavior.

As a matter of common sense, it’s pretty hard to argue with Kagan’s conclusion. It seems exceedingly unlikely that, in passing the immigration law, Congress would have wanted to exclude state felonies that aren’t written with a jurisdictional hook. Congress simply meant to define state felonies by reference to the federal equivalents.

There’s nothing ideological about Kagan’s opinion. Indeed, it combines a nominally “conservative” result -- more deportations -- with classically “liberal” statutory interpretation focused on the law’s purpose.

So why did three justices dissent? Sotomayor wrote her opinion non-ideologically. She focused on the plain meaning of the immigration law, which says the offense must be “described in” the federal statute. A state law missing an element isn’t described in the statute. “Case closed,” she concluded.

It's possible the liberal Sotomayor was motivated to read the law literally in order to reach a result that would reduce deportations. That surely can’t explain Thomas’s decision to join her opinion. For him, the predominant impulse must have been to read the statute literally. With Scalia gone, Thomas is the court’s sole remaining principled textualist.

Breyer’s decision to join Sotomayor is most surprising. Breyer is not only pragmatic, but also is the court’s most outspoken advocate of interpreting statutes in light of their purpose. Kagan’s opinion could almost have been written by Breyer -- which isn’t a total coincidence, since she’s also a pragmatist with a (less outspoken) taste for statutory purpose.

I don’t have a definitive theory to explain Breyer’s vote. True, he’s a cosmopolitan with an English wife, so he may not want to deport people unless the law is extremely clear. But I’ve never thought before that Breyer had a particularly liberal bent on immigration.

The best explanation I can think of is that Breyer likes the provision of the immigration law that allows an immigrant to ask the attorney general for discretionary relief that would let him or her remain in the country. This is effectively an administrative proceeding, the kind Breyer cares about.

The majority’s reading of the federal statute doesn’t just make the felon deportable. It also takes away the attorney general’s discretion to decide whether to order the deportation. That is, the court’s ruling takes the crucial decision away from the administrative apparatus and gives it to a judge applying a mechanical rule.

It may be that Breyer simply didn’t like this anti-administrative effect of the court’s decision. Or not. The broader point is that ideology isn’t playing much of a role in this case.  Court observers should enjoy it while it lasts.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net