WASHINGTON – The Supreme Court ruled on Tuesday that people held in immigration detention, sometimes for years, are not entitled to periodic hearings to decide whether they may be released on bail.
The vote was 5-3, with the court’s more conservative members in the majority. Justice Stephen Breyer summarized his dissent from the bench, a rare move signaling intense disagreement.
The majority ruled on narrow grounds, saying that the immigration laws do not by their terms authorize the hearings. It sent the case back to the Ninth U.S. Circuit Court of Appeals in San Francisco, instructing it to consider whether the Constitution requires the hearings.
The Ninth Circuit had ruled that bond hearings are required after six months to determine whether detainees who do not pose flight risks or a danger to public safety may be released while their cases proceed. The court based its ruling on an interpretation of the federal immigration laws, not the Constitution.
Justice Samuel Alito, writing for the majority, said that this interpretive approach, called “constitutional avoidance,” was unavailable here, as the words of the immigration laws were plain. “The meaning of the relevant statutory provisions is clear — and clearly contrary to the decision of the court of appeals,” Alito wrote.
Chief Justice John Roberts and Justice Anthony Kennedy joined all of the majority opinion, and Justices Clarence Thomas and Neil Gorsuch most of it, though those two justices also wrote that the Supreme Court was powerless to hear the case at all.
In dissent, Breyer wrote that “we can, and should, read the relevant statutory provisions to require bail proceedings in instances of prolonged detention without doing violence to the statutory language or to the provisions’ basic purposes.”
Justices Ruth Bader Ginsburg and Sonia Sotomayor joined Breyer’s dissent.
In response, Alito accused his colleagues of taking extreme liberties with the English language. “The dissent evidently has a strong stomach when it comes to inflicting linguistic trauma,” Alito wrote. “The contortions needed to reach these remarkable conclusions are a sight to behold.”
Breyer wrote that the Supreme Court, which had asked for additional briefs on the constitutional question, should have reached that question and decided whether people held in the United States have a right to be free of unjustified indefinite detention.
He noted that the average time of detention was a year and was often much longer, adding that “many of those whom the government detains eventually obtain the relief they seek.”