“Anyone who has applied for a passport, filed for Social Security benefits, or sought a license understands the government’s affinity for forms.”
While that quote seems like a great lede for a column, it turns out to be an even better beginning to a U.S. Supreme Court decision. It is, in fact, the first line in an opinion written by Justice Neil Gorsuch that will have a significant effect on immigrants across the country.
Writing for the 6-3 majority in Niz-Chavez v. Garland, Colorado native Gorsuch rendered yet another opinion sure to shock anyone who insists that judges are beholden to the political interests of those who appoint and approve them. In Gorsuch’s case, it likely comes much to the consternation of former President Donald Trump and many of the 51 Republican senators who confirmed him.
Furthermore, he has become the most important advocate of textualism since the late Justice Antonin Scalia. Gorsuch summed up his view of textualism neatly in the current case writing that the Supreme Court’s “‘sole function’ is to apply the law as we find it.”
To Gorsuch, that means applying the ordinary meaning of the words contained in a law without regard to subjective views on what may or may not have been intended. Such an approach lives up to the adage that justice must be blind, to the people, causes or outcomes before a court.
It also occasionally puts him at odds with other conservative justices, including the three who joined a dissent against his opinion. Given that two others, Justices Clarence Thomas and Amy Coney Barrett — who proved she is not the ideologue in a black robe her liberal detractors claimed — joined Gorsuch, it seems that the most interesting fight in the court will no longer be between the “conservative vs liberal” dichotomy, but rather strains of judicial philosophy and which versions provide superior judgments.
That is exactly the way it should be.
In this case Gorsuch’s strict adherence to textualism boiled the case down to how the indefinite article “a” should be determined. As Gorsuch wrote, “a lot turns on a small word.”
It also requires precision in statutory drafting by Congress, a skill that body regularly fails to demonstrate. To the contrary, as the opinion wryly stated, sometimes “Congress’s statutes stray a good way from ordinary English.”
Regardless, as Gorsuch explained, using “a” meant that all the information that needed to be provided must come in one, single notice, not two, three, four or more. As Gorsuch, who writes with surprising and welcome humor, pointed out, “someone who buys ‘a car’ would hardly expect to receive the chassis today, wheels next week, and en engine to follow.”
It is an opinion my English teacher spouse would be particularly proud to read. And it’s one her students could probably learn from.
It is also belated solace to me. More than a decade ago I argued a case asking a court to differentiate between “a” and “the” major purpose of a Colorado issue committee. Little words, big consequences.
The end result will allow not just Agusto Niz-Chavez to challenge his deportation order, but likely hundreds of thousands of other immigrants who have lived in our country without legal permission as contributing members of our communities.
It is unclear whether Gorsuch approves or disproves of that outcome. But that is precisely what you hope for from a judge. When personal opinions and biases are removed from the equation, all that is left is the law. That should be the aim of every judge.
Niz-Chavez is just “a” single opinion. But it stands for so much more.
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq
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