By Michael Dorf
My latest Verdict column discusses Monday's Supreme Court ruling in Kerry v. Din. I am highly critical of the bottom line: The U.S. government denied an entry visa to the spouse of a U.S. citizen without providing any factual explanation, simply pointing to a broad statute, but five Justices found no procedural due process violation. As I explain in the column, the plurality opinion of Justice Scalia is cruelly formalistic. He says that procedural due process protections aren't triggered at all because the government isn't denying the respondent and her husband the right to marry; it's only denying them the ability to live together in the country of her citizenship. It would be too easy to quote Anatole France here, so I won't.
Meanwhile, in the course of the column, I note but don't comment on the potential implications of the plurality opinion for same-sex marriage. Here I'll just note the obvious: the plurality can be understood as an invitation to anti-SSM states to sabotage the (presumably) coming ruling in Obergefell v. Hodges by permitting same-sex couples to marry but then denying them many of the usual incidents of marriage. It's possible that the Scalia plurality was not intended that way but the possibility that it was is so clear on the face of the opinion that one can only wonder what it implies about the views of Chief Justice Roberts, who, along with Justice Thomas, joined the Scalia plurality.
If I were trying to make money by predicting the vote in Obergefell, I would downgrade the likelihood of CJ Roberts voting to find a right to SSM from about 45% (which is where I had it after the oral argument) to about 30%. Meanwhile, I would upgrade the likelihood of a pro-SSM vote from Justice Alito (who joined Justice Kennedy's more moderate concurrence in the judgment rather than the Scalia plurality in Din) from about 5% to about 10%. But gamblers beware: These numbers are based on nothing but speculation and do not constitute either legal advice or investment advice!
15 comments:
Do you think a wife has a due process right to object to her husband's federal criminal conviction, let alone to the Bureau of Prisons's decision to incarcerate him in a prison on the other side of the country? It seems to me that your non-"cruelly formalistic" rationale -- pursuant to which a wife somehow has her own DP objection because she's separated from her husband in light of a restriction on *his* liberty -- would necessarily lead to that conclusion. But that position, while perhaps compassionately pragmatic, seems nuts. (And just to preempt one possible response -- it's both wrong and irrelevant to distinguish this hypo on the ground that the incarcerated husband can assert his own DP rights: first, I don't think even the prisoner himself has a right to object to BOP's choice of prison, much less on the ground that it's farther from his wife than he'd prefer; second, whether the wife's own liberty interests have been infringed don't turn on whether the husband has a cognizable liberty interest.)
Not sure why you think CJ Roberts and Alito have any higher than a 0% chance of joining a pro-SSM ruling in Obergefell given what they wrote in Windsor and said at oral argument, Roberts's question about sex discrimination notwithstanding...
Much to do today so I'll answer only briefly and then probably just read with interest but not comment further:
(1) Hash's "hypothetical" example is all too real. The BOP (and in large states like Texas and NY, the state equivalent) frequently incarcerates an inmate at a great disatnce from his family, often with very serious adverse consequences. Now there may well be sound reasons why internal administrative procedures by prison authorities are all the process that is "due" in light of the potential disruption from external adjudication of all such location determinations. That would be analogous to Justice Kennedy's position in Din. But to say that the family members lack even a liberty interest (not a fundamental right, mind you) in seeing their incarcerated family members is what strikes me as nuts.
(2) As for Hash's initial example, the requirement of a substantial relationship to establish next-friend standing (cf. Hamdi) reflects the fact that the law recognizes that close relatives in fact do have an interest in whether their loved ones are detained.
(3) Brunonian: My initial very low but non-zero estimate for Justice Alito was based on my experience with overconfident predictions. It sometimes rains on days when the weather forecast is for a 0% chance of precipitation. I would put Justices Scalia and Thomas at essentially zero but there's very slight wiggle room (a few wispy clouds, let us say) for Justice Alito. Given that I downgraded CJ Roberts based on his join of Justice Scalia in Din, I thought it only appropriate to upgrade Justice Alito based on his non-join--although the odds are still very low. As for CJ Roberts, it's not just the sex discrimination question but the overall impression that he has a sense of history and knows how a "no" vote will ultimately be viewed.
Professor,
Regardless of your response to Hashim I think it is highly unlikely Din can be used for the mischief you claim, as the precedent here is limited by the standing issue, and such incidents-of-marriage claims would otherwise be massively undermined by Windsor. So rest easy.
I should also say that the Expatriation Act is obviously unconstitutional, so Scalia's invocation of it to explain the contours of the constitution is, to put it mildly, curious.
I'm troubled that CJ Roberts joined that plurality especially since it wasn't necessary, not controlling & Alito didn't. Scalia speaks of an "artificial world of ever-expanding constitutional rights" that "this Court has seen fit" to protect and have "indulged a propensity for grandiloquence when reviewing the sweep of implied rights." And so on. Given his druthers, he doesn't even grant the right to marry is a "liberty" that the Due Process Clause protects though accepts it as precedent. Is this the first time Roberts joined an opinion that goes so far?
I'm unsure about the denial of usual protections of marriage concern, since unlike the right to live with a non-citizen spouse in the U.S. there would be more history to show that they were "usual incidents of marriage." And, there would be an equal protection claim to be made if states single out same sex couples. On general principle, I think Justice Thomas supports a "right to marry" as a privilege or immunity of citizenship (as he said in respect to raising children), but the non-citizen spouse thing was just not traditional enough for him. Both Scalia and Thomas would clearly say that SSM isn't traditional so not protected.
What Roberts will do is unclear at this point. I find it hard to believe his join here makes him less likely than Alito (with his strong Windsor dissent) to support SSM. I also doubt he really doesn't support a constitutional "right to marry." But, his join here does make inferences quite easy.
One final point:
I don't know if Din is correctly decided; I'm pretty confident that Scalia's plurality decision is wrong, but not sure whether I agree with the concurrence or the dissent. That being said, does this case have any precedential value outside of the very narrow category of visa entry denial? You have three votes for a broad limitation to standing under due process clause, four votes against that; you have four four votes for a broad interpretation of the content of the due process clause, and two votes against that. You have five votes for....nothing. Cf Stolt-Nielsen v. Animalfeeds (claiming that that Bazzle had no precedential value given the vote breakdown).
Mike: "A "next friend" does not himself become a party to the habeas corpus action in which he participates, but simply pursues the cause on behalf of the detained person, who remains the real party in interest." Whitmore v. Arkansas, 495 U.S. 149, 163 (1990). So, while next-friend status certainly is limited to those who have a substantial relationship, see id., that requirement to serve as a non-contractual agent doesn't change the fact that the only *constitutionally protected interest* is that of the incarcerated prisoner himself. (Otherwise, there'd be no need to sue as a next-friend; the spouse could just sue on her own behalf.) And here, the non-citizen husband has no constitutionally protected interest. Ditto, I think, for BOP placement decisions, as I'm not sure whether even the prisoners themselves get *any* process (much less to raise objections based on family separation). Likewise even for the conviction itself: the defendant can challenge (or not) his conviction, but the spouse has no independent liberty interest in whether the conviction is upheld.
Hashim, I think your argument proves too much. If correct, then those 19th century immigration laws would be constitutional. I agree the standing problem is difficult, but your attempt to resolve it in black and white falls short. Surely this is an area for at least some shades of grey.
Justin: no, because the fact that a US citizen lacks a *liberty interest under the due process clause* in her spouse's immigration status doesn't mean that she's not entitled to "equal protection of the laws" for purposes of gender discrimination. A federal law that treats US women worse than US men with respect to their spouse's immigration status gives rise to a cognizable equal protection claim for the US citizen (at least under modern equal protection doctrine's extension to women and the federal govt), but a law that treats all US spouses equally poorly with respect to their spouse's immigration status doesn't impose any constitutionally cognizable injury on any of them.
I only meant to invoke "next friend" cases by way of analogy.
You said constitutionally-protected interest. Aside from that, while not arbitrary, I'm skeptical that your distinction is historically or structurally defensible.
The prison hypo was raised in the oral argument.
I think if a wife couldn't even visit her husband in prison, there would clearly be a "liberty interest" involved. If she could not, she would have to be notified why with good cause provided. But, I'm unsure what prisoners cannot even see their spouses at all on designated visiting days.
And, the situation isn't the same, as was noted by the lawyer during the oral argument. The prisoner has broad due process protections, obviously, while being prosecuted and even some in prison. Using due process of law, the restraint was justified as necessary. The wife is on notice there; even the general public can view the trial records. Here the federal government argues there isn't even a right to notice on why the person is not being allowed to enter the country. At least Kennedy/Alito suggests some limited rights there, including to offer proof of error.
The wife here herself has interests to living with her spouse and not being required to give up the right to residency in the U.S. to do so. The "immigration status" of her husband is a "liberty" interest to her here in a way it might not be in some other situation. She also is an American citizen while the husband is not. This places her in a special position alone for constitutional purposes. Scalia says as much -- this again wouldn't arise in the typical prison scenario, since the prisoner (even a non-citizen in GITMO) has a cause of action on their own.
Looks like Kennedy is ducking....I would not be surprised if the same sex marriage case rules the same way.
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