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October 3, 2017

Interesting comments from the new Justice during reargument of vagueness issues in Sessions v. Dimaya

The first week of oral argument in front of the Supreme Court in the 2017 Term includes reargument in two immigration cases, Sessions v. Dimaya and Jennings v. Rodriguez, that raise constitutional question that could have a range of implications for a range of criminal justice issue.  Dimaya is a follow-up on the (new?) doctrines the Supreme Court started developing in Johnson v. US finding a portion of the Armed Career Criminal Act void for vagueness, and Rodriguez involves broad issues of detention length and due process.

Dimaya was argued yesterday, and I have not yet had a chance to read this full argument transcript closely.  But a quick scan of the transcript with a focus on what the new Justice, Neil Gorsuch, had to say revealed that he is already showing a commitment to textualism and seems quite engaged with interesting issues at the intersection of civil and criminal sanctions.  For example, consider this passage at the start of a question a series of questions for the government's lawyer:

First, getting back to the standard of review and the distinction between criminal and civil, this Court seems to have drawn that line based on the severity of the consequences that follow to the individual, but that seems to me a tough line here to draw because I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn't trade places in the world for someone who is deported -- deported from this country pursuant to a civil order or perhaps the subject of a civil forfeiture requirement and loses his home.

So how sound is that line that we've drawn in the past, especially when the civil/criminal divide itself is now a seven-part balancing test, not exclusive, so there may be more than seven factors as I understand it.  And I look at the text of the Constitution, always a good place to start, and the Due Process Clause speaks of the loss of life, liberty, or property.  It doesn't draw a civil/criminal line, and yet, elsewhere, even in the Fifth Amendment, I do see that line drawn, the right to self-incrimination, for example. So help me out with that.

Time will tell how this line of inquiry might find expression in opinions of Justice Gorsuch or other justices in the months ahead. Notably, elsewhere in the transcript, it appears the advocates and other Justices follow-up on points made by Justice Gorsuch in ways that provide further proof that the addition of a single new Justice does serve in some ways to change the entire Court.

UPDATE:  Not very long after this post went up, Kevin Johnson posted at SCOTUSblog this analysis of the Dimaya oral argument under the title "Faithful to Scalia, Gorsuch may be deciding vote for immigrant." Here is his final paragraph:

In sum, the oral argument suggests that Dimaya has a fair chance of prevailing in the Supreme Court.  Gorsuch, the possible deciding vote in the case, seemed willing to apply Scalia’s opinion in Johnson to Dimaya’s case -- maybe even more faithfully than Scalia himself would have done.  And Gorsuch had ready responses to line-drawing and other problems that might arise if the vagueness doctrine were held to invalidate the immigration statute’s residual clause.

October 3, 2017 at 11:02 AM | Permalink


"And I look at the text of the Constitution, always a good place to start, and the Due Process Clause speaks of the loss of life, liberty, or property. It doesn't draw a civil/criminal line, and yet, elsewhere, even in the Fifth...."

I want to kiss his feet. As I have said on this blog in the past the civil/criminal distinction is simply not a distinction that makes any sense anymore, if it ever did. It is, in William James famous phrase, "a difference that doesn't make a difference." Time is money, friend, and the loss of property is the loss of liberty and the loss of liberty is the loss of money. When this is understood it becomes clear that the civil/criminal distinction is a distinction based upon process masquerading as a distinction based upon substance. The process this distinction seeks to reinforce is a process that seeks to undermine the Constitution.

Posted by: Daniel | Oct 3, 2017 12:03:31 PM

If civil/criminal is not a distinction that makes any sense any more, is it unconstitutional to have a lower standard of proof in "civil" cases?

Posted by: Joe | Oct 3, 2017 4:49:04 PM

I think the Constitution makes clear (as Justice Gorsuch does in the latter part of his question) that there is a distinction between civil and criminal cases. It's just not a meaningful distinction in all contexts and some types of civil cases, perhaps, should entail the same level of protections as criminal cases.

I think the contrast between Justice Gorsuch's questions on void for vagueness (a core due process issue) yesterday and bail today (an Eighth Amendment issue) could be significant, particularly in light of the remainder of his references to the civil/criminal distinction in Dimaya.

Posted by: tmm | Oct 3, 2017 5:52:42 PM


As I see it there is only one cause of government action: power. My main concern is about the civil/criminal distinctions related to the context of sentencing...that is the imposition of penalties...such as the artificial distinction between civil and criminal fines or the artificial distinction between imprisonment and civil commitment, When it comes to the distinction between civil and criminal during the guilt or liability phase of court proceedings I take @tmm point that there might be certain situations where that too is needs a closer look. Perhaps it turns of the nature of the actors involved. But I have't given that aspect as much thought.

Posted by: Daniel | Oct 3, 2017 6:41:50 PM

I can see this line of thought having some traction in the sex offender registration area. Once the civil/criminal line is blurred, Ex Post Facto gets a chance to bat.

Posted by: Mark M. | Oct 5, 2017 5:04:35 AM

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