During Anthony Kennedy's long reign as the Supreme Court's swing vote, advocates perfected the art of “the Kennedy brief”: a legal argument designed to win his support by rhapsodizing about “dignity” and “liberty.” While the Kennedy brief went extinct upon his retirement, it may now be replaced by the Gorsuch brief, which replaces florid encomia to freedom with highly technical textualist arguments. The American Civil Liberties Union tested this strategy in a major immigrant-detention case this week. Gorsuch's questions indicate it just might have worked.
Wednesday's case, Nielsen v. Preap, revolves around a statute that requires the mandatory detention, without bond, of certain unauthorized immigrants. This law states that the secretary of Homeland Security “shall take into custody” a noncitizen who has committed certain crimes “when the alien is released” from criminal custody. The Trump administration claims that, under this provision, it may arrest and detain an unauthorized immigrant indefinitely a day, a month, a decade, or even a half-century after she's been released from custody. The ACLU argues the government must detain these individuals immediately upon their release. If it fails to do so, the ACLU asserts, the government may still detain them at some point down the road, but it must grant them the same bond hearings that other individuals in immigrant detention receive.
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