I thought I would start where I left off the other day because, Brett Kavanaugh has already had the effect of bending the arc farther in the wrong direction, even worse in this instance than Neil Gorsuch:
A Supreme Court argument on Wednesday over the detention of immigrants during deportation proceedings seemed to expose a divide between President Trump’s two appointees, Justices Neil M. Gorsuch and Brett M. Kavanaugh.
The question in the case was whether the federal authorities must detain immigrants who had committed crimes, often minor ones, no matter how long ago they were released from criminal custody. Justice Kavanaugh said a 1996 federal law required detention even years later, without an opportunity for a bail hearing.
“What was really going through Congress’s mind in 1996 was harshness on this topic,” he said.
But Justice Gorsuch suggested that mandatory detentions of immigrants long after they completed their sentences could be problematic. “Is there any limit on the government’s power?” he asked.
Justice Stephen G. Breyer pressed the point, asking a lawyer for the federal government whether it could detain “a person 50 years later, who is on his death bed, after stealing some bus transfers” without a bail hearing “even though in this country a triple ax murderer is given a bail hearing.”
The report in the Times notes that Gorsuch, in what I assume will be a rare departure from Republican-fascist jurisprudence sided with the four "liberals" on the court instead of the four who thought as Kavanaugh will on such matters. It took Breyer some doing to get the Trump lawyer to answer the question and if Gorsuch hadn't intervened to say that Breyers' question was also his question, I'll bet he wouldn't have.
“Mr. Tripp, we’re quibbling,” Justice Gorsuch said. “Justice Breyer’s question is my question, and I really wish you’d answer it.”
Mr. Tripp eventually responded, “This applies regardless of time.” He added that Congress had intended that harsh result.
Brett Kavanaugh wasn't hesitant to say that Breyer's theoretical about someone who had stolen bus transfers a half a century ago should be given the maximum possible interpretation of the statute, no matter what the crime was or how old it was.
The United States Court of Appeals for the Ninth Circuit, in San Francisco, concluded that the law requires mandatory detention only if the federal authorities take immigrants into custody soon after they are released.
“Because Congress’s use of the word ‘when’ conveys immediacy,” Jacqueline H. Nguyen wrote for a unanimous three-judge panel, “we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”
Justice Kavanaugh disagreed, saying the 1996 law put no time limits on the detentions it required.
“That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so,” he said.
Justice Breyer said the solution was to allow immigrants detained long after release from criminal custody to have bail hearings. He said those would allow immigrants who were not dangerous and who posed no flight risk to return to their communities. “The baddies will be in jail,” he said, “and the ones who are no risk won’t be.”
Justice Kavanaugh disagreed. “The problem is that Congress did not trust those hearings,” he said. “Congress was concerned that those hearings were not working in the way that Congress wanted and, therefore, for a certain class of criminal or terrorist aliens said, ‘No more.’”