On the flip side, those on the populist right have been crowing about how President Trump put one over on the globalist elites by appointing a white guy with stellar credentials who knows where his MAGA bread is buttered and makes the splodey heads keep sploding.
Well, both camps must be scratching their heads — those that haven’t sploded — at Gorsuch’s deciding vote in Sessions v. Dimaya, the closely watched criminal immigration (“crimmigration”) case that was reargued this term after the short‐handed Supreme Court split 4–4. The case asked whether a particular deportation statute was unconstitutionally vague. Gorsuch joined the four liberals in saying yes and thus allowing a twice‐convicted green card‐holder (not an illegal alien, as some Twitter lawyers reported) to stay in the country.
The law at issue provided that even a lawful permanent resident must be deported if he committed certain crimes, some that were specifically listed and the rest covered by a general “crime of violence,” defined as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” This is the latest in a series of cases involving the “void for vagueness” doctrine, meaning that prosecuting someone under a vague law — the legislature’s delegation of broad powers to prosecutors to determine “bad” conduct — violates due process rights.
Notably, in the 2015 case of Johnson v. United States, the Supreme Court threw out the very similar “residual clause” of the Armed Career Criminal Act, which enhanced someone’s sentence based on three prior “violent” felonies. The late Justice Antonin Scalia wrote that opinion for an eight‐justice majority, noting his distrust of such laws because they allow “more unpredictability and arbitrariness than the Constitution allows.” It was Scalia’s last major opinion and a fitting capstone to a career spent expressing skepticism of unconstrained government power, often in ways that redounded to the benefit of criminal defendants.
So it’s altogether fitting that the man who replaced Scalia — who was billed by everyone from the president on down as continuing his legacy — to vote the way he did in Dimaya. Here’s how he begins his opinion: