At oral arguments at the US Supreme Court on October 10, the justices took up the issue of whether ICE must detain immigrants guilty of even minor crimes committed long ago. Justice Brett Kavanaugh said a 1996 law passed by Congress demanded it and made no provision for a bail hearing.
That was too much for the Trump-appointed Justice Neil Gorsuch, who asked government lawyers if there was “any limit” on their power in these cases. He followed up on Justice Stephen Breyer’s question whether an immigrant could be detained “on his death bed, after stealing bus transfers” half a century ago. The government lawyer insisted there was no time limit on these infractions.
Gorsuch was seen as potentially joining the court’s more liberal members in striking the law down as he did in an immigrant detention law he found unconstitutionally vague.
Kavanaugh positioning himself to the right of Gorsuch is startling, given that one of Gorsuch’s first written opinions, in June 2017, dissented from the high court’s finding that the 2015 marriage equality ruling necessarily meant that the wife of an Arkansas birth mother has the right to be listed on the child’s birth certificate. Gorsuch found that it was not settled law that the marriage decision implicated all the rights and benefits different-sex couples enjoy.