President Joe Biden's new op-ed in The Washington Post makes the bold argument that, following a constitutional amendment to reverse a recent Supreme Court decision, Congress should pass both Supreme Court term limits and an ethics code to "restore the public's faith in the judicial system." According to Biden, the Court's "extreme" decisions and ethical crisis require immediate action.
Looking at the last Supreme Court term, none of this is true. The Court's opinions were nuanced and largely unanimous, and there are no credible allegations of vote-buying. If Biden wants to restore faith in the Court, he'd do better to highlight these nuances rather than using the Court as a political talking point.
At the outset, it's worth taking a bird's eye view of the Court. This term, the Court ruled unanimously in almost half (46 percent) of cases, which was similar to the year before (48 percent) and a significant uptick from the term before that (29 percent). Among the Court's unanimous or near-unanimous opinions were hot-button cases involving former President Donald Trump's eligibility for the presidency, access to the abortion drug mifepristone, the government's ability to dissuade companies from doing business with the National Rifle Association, regulation of social media companies, and the scope of the Second Amendment. Such consensus among the justices undercuts Biden's characterization of a rogue or extremist Court.
It's true that the Court is sometimes divided along partisan lines—and in many of those cases, the justices disagree vigorously. As Biden points out, Trump v. United States (regarding presidential immunity)and Dobbs v. Jackson (regarding abortion)represent two such cases. But just because these opinions were divisive doesn't make them radical.
For example, Biden chided the Court for imposing "virtually no limits on what a president can do" in the immunity case, but the Court maintained an ample sphere of liability for presidential acts. All nine justices agreed that presidents have absolutely noimmunity for unofficial acts. While the majority ruled that absolute immunity applies to core, official acts, it emphasized that noncore duties are only presumptively immune.
Reasonable people can disagree about whether the Court made it too hard to rebut that presumption. But to make that call, we'll have to see how the standard plays out in practice. Trump's case, for example, will now go back down to the district court, which will determine which acts are official or unofficial, core or noncore, and whether the special prosecutor can surmount any presumption of immunity that applies. It makes little sense to say at this premature stage, as Biden does, that the only limits left on the president are "self-imposed."
Biden also criticizes the Court for "overturn[ing] settled legal precedents" like Roe v. Wade. But this is a critique with no substance. Precedent isn't an end in and of itself; prior cases should stand when they're correct and well-reasoned and fall when they're not. Some of the most important Supreme Court decisions in history "overturned settled precedent," including Brown v. Board of Education (overturning the separate but equal doctrine) and Gideon v. Wainwright (extending the right to counsel to felony defendants in state courts). Overturning precedent is part of a Supreme Court justice's job description. Without context, saying a judge overruled an earlier case is meaningless.
Biden's ethics accusations similarly lack substance. Though many have wrung their hands over Justice Clarence Thomas' friendship with businessman Harlan Crow, not one person—including Biden—has pointed to any specific instance where the justice supposedly traded his vote for a gift from his wealthy friend (and they ignore that Thomas voted against Crow's personal convictions in the abortion case). That's not surprising. Thomas is widely regarded as one of the most consistent justices on the Court who regularly writes separate opinions to explain his idiosyncratic views. Given that his views are so consistent, transparent, and well-known, it would be especially difficult for him to abandon them in exchange for a flight on a private jet. If anything, bribes are much more likely in the context of opaque decision making—as happens behind closed doors in the legislative and executive branches.
In at least some ways, the Court is showing more restraint than in prior years. It's taking fewer cases than ever (just 59 this year, compared to 82 a decade ago), it's finding reasons to sidestep thorny issues, and it's increasingly using judge-made legal doctrines to rule that the plaintiffs have no right to sue or that the case needs more time before the Court can step in. It also continues to produce interesting alignments between justices considered to be on opposite ideological spectrums. In a case involving the January 6 defendants, for example, Justice Ketanji Brown Jackson voted with "conservative" justices to throw out the convictions while Justice Amy Coney Barrett voted with the "liberals" to affirm them.
In sum, the Supreme Court is not exactly a radical conservative monolith. This term, Court watchers actually observed strong disagreements among Republican-appointed justices. If Biden cares about bolstering the public's faith in the judiciary, he'd be wise to emphasize this nuance.
Justice Amy Coney Barrett. (Eric Lee/Pool via CNP/Polaris/Newscom)
In its important recent immigration decision in Department of State v. Munoz, the Supreme Court ruled there are virtually no constitutional limits on the federal government's power to bar non-citizen spouses of American citizens from entering the country. In the process, Justice Amy Coney Barrett's majority opinion (written on behalf of herself and the five other conservative justices) commits serious errors in historical analysis, and violates Justice Barrett's own well-taken strictures about the appropriate use of history in constitutional analysis.
Sandra Munoz is a US citizen whose husband, Luis Asencio-Cordero (a citizen of El Salvador) was barred from entering the US to come live with her, because US consular officials claimed he had ties to the MS-13 criminal drug gang (which connectoin Ascencio-Cordero denies). Munoz filed suit, claiming that, given that the constitutional right to marriage was implicated, the State Department was at the very least required to reveal the evidence that supposedly proved her husband's connection to the gang.
In arguing that there is no originalist or historical justification for US citizens to claim a right to entry for their non-citizen spouses, Justice Barrett cites historical evidence from the 1790s:
From the beginning, the admission of noncitizens into the country was characterized as "of favor [and] not of right." J. Madison, Report of 1800 (Jan. 7, 1800)…. (emphasis added); see also 2 Records of the Federal Convention of 1787, p. 238 (M. Farrand ed. 1911) (recounting Gouverneur Morris's observation that "every Society from a great nation down to a club ha[s] the right of declaring the conditions on which new members should be admitted"); Debate on Virginia Resolutions, in The Virginia Report of 1799–1800, p. 31 (1850) ("[B]y the law of nations, it is left in the power of all states to take such measures about the admission of strangers as they think convenient"). Consistent with this view, the 1798 Act Concerning Aliens gave the President complete discretion to remove "all such aliens as he shall judge dangerous to the peace and safety of the United States." 1 Stat. 571 (emphasis deleted). The Act made no exception for spouses—or, for that matter, other family members.
Almost everything in this passage is either false or misleading. The quote from James Madison's Report of 1800, does not, in fact, indicate that Madison believed the federal government has blanket authority to exclude immigrants for whatever reason it wants. Far from it. Madison was arguing that the Alien Friends Act of 1798 (part of the notorious Alien and Sedition Acts) was unconstitutional because the federal government lacks such power. Here is the passage where the quote occurs:
One argument offered in justification of this power exercised over aliens, is, that the admission of them into the country being of favor not of right, the favor is at all times revokable.
To this argument it might be answered, that allowing the truth of the inference, it would be no proof of what is required. A question would still occur, whether the constitution had vested the discretionary power of admitting aliens in the federal government or in the state governments.
Note that Madison does not even admit that admission of immigrants is "a favor." He just assumes it is for the sake of argument, then goes on to argue that the Alien Act is unconstitutional regardless, because the relevant power isn't given to the federal government (this is what he argues in the rest of the Alien Act section of his Report). The 1798 Act Concerning Aliens, also quoted by Justice Barrett, is the very same Alien Friends Act denounced as unconstitutional by Madison, Thomas Jefferson, and many others. Opposition to the Act was so widespread that no one was ever actually deported under it, before Thomas Jefferson allowed it to expire upon becoming president in 1801.
I think Jefferson and Madison were right to argue the Alien Friends Act was unconstitutional. But, at the very least, legislation whose constitutionality was so widely questioned at the time cannot be relied on as strong evidence of the original scope of federal power in this area.
The quote by Gouverneur Morris at the Constitutional Convention is not about immigration restrictions at all. It is part of a speech defending his proposal that people must be required to have been citizens for at least fourteen years before being eligible to become US senators. The proposal was rejected by the Convention (which eventually decided on a nine-year requirement). It was denounced by several other prominent members of the Convention, including James Madison and Benjamin Franklin. Madison argued it was "unnecessary, and improper" and would "give a tincture of illiberality to the Constitution" (see Records of the Federal Convention of 1787, Vol. 2, pp. 235-37 (Max Farrand, ed., 1911)).
Morris's speech in favor of this failed proposal is not a reliable guide to the sentiments of the Convention. Still less is it indicative of the original meaning understood by the general public at the time of ratification (which is the relevant criterion for most originalists, including Justice Barrett, who has said the original meaning of a constitutional provision is "the meaning that it had at the time people ratified it").
Finally, the Debate on the Virginia Resolutions in the Virginia Report of 1799-1800, also quoted by Justice Barrett, was a record of debates in the Virginia state legislature over the Virginia Resolution (drafted by Madison) a statement asserting that the Alien Friends Act is unconstitutional. The passage Barrett quotes is from a speech by a dissenting member of the Virginia state legislature opposing the Resolution. The majority, however, sided with Madison.
Given this history, the debate over the Resolution cannot be relied on to justify virtually unlimited federal power over immigration by spouses of citizens, or any other migrants. And because Madison and the majority in the state legislature argued that the entire Alien Friends Act was unconstitutional, they understandably did not bother to argue that there was a separate issue regarding exclusion of non-citizen spouses of citizens. To my knowledge, no such case involving spouses came up during the short time the Act was in force.
Justice Barrett also relies on dubious 19th century history:
The United States had relatively open borders until the late 19th century. But once Congress began to restrict immigration, "it enacted a complicated web of regulations that erected serious impediments to a person's ability to bring a spouse into the United States." Din, 576 U. S., at 96 (plurality opinion). One of the first federal immigration statutes, the Immigration Act of 1882, required executive officials to "examine" noncitizens and deny "permi[ssion] to land" to "any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge." 22 Stat. 214. The Act provided no exception for citizens' spouses. And when Congress drafted a successor statute that expanded the grounds of inadmissibility, it again gave no special treatment to the marital relationship….
In her recent concurring opinion in United States v. Rahimi, an important Second Amendment case, Justice Barrett warned about careless reliance on post-ratification history in constitutional interpretation:
[F]or an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function. To be sure, postenactment history can be an important tool. For example, it can "reinforce our understanding of the Constitution's original meaning"; "liquidate ambiguous constitutional provisions"; provide persuasive evidence of the original meaning; and, if stare decisis applies, control the outcome…. But generally speaking, the use of postenactment history requires some justification other than originalism simpliciter….
As I have explained elsewhere, evidence of "tradition" unmoored from original meaning is not binding law… And scattered cases or regulations pulled from history may have little bearing on the meaning of the text.
Here, Barrett relies heavily on "evidence of 'tradition' unmoored from original meaning" and "scattered… regulations" enacted more than a century after ratification. In fairness, the nineteenth century laws in question were enacted closer in time to the ratification of the Fourteenth Amendment in 1868, which is where the Supreme Court has said the right to marry arises from (albeit, when it comes to the federal government, the right is read back into the Fifth Amendment). But the 1880s was still a long time after ratification. Moreover, the laws in question were enacted at a time when racial and ethnic bigotry undermined enforcement of much of the original meaning of the Fourteenth Amendment, and such bigotry heavily influenced immigration legislation and jurisprudence.
Barrett also relies on the history in part because the Supreme Court's test for whether the Due Process Clauses of the Fifth and Fourteenth Amendment protect an unenumerated right (like right to marry) require the right to be "deeply rooted in this Nation's history and tradition." But a combination of badly misinterpreted 1790s history and 19th century history heavily tinged by racial and ethnic bigotry are poor means for applying that test.
As Justice Barrett recognizes later in her opinion, in later years Congress did in fact enact legislation giving spouses of US citizens a presumptive right to enter the United States, though there are exceptions, such as the one for "unlawful activities" at issue in this case. That suggests there may in fact be a historically rooted right to spousal migration, even if not an absolute one (most other constitutional rights aren't completely absolute, either).
Overall, I think Amy Coney Barrett has been a pretty good justice since her controversial appointment just before the 2020 election. But Munoz is far from her finest hour.
The Court's badly flawed handling of history doesn't necessarily mean the bottom-line decision was wrong. Even the dissenting liberal justices agreed the government was justified in denying Asencio-Cordero a visa, reasoning that the possible ties to MS-13 were a sufficient justification to outweigh the right to marry in an immigration case (and, as Justice Gorsuch notes in a concurring opinion, the government did eventually reveal the evidence in question). Alternatively, one can argue the right to marriage doesn't necessarily include a broad right to have your spouse present in the same jurisdiction. There may be other possible justifications for the outcome, as well.
But the Supreme Court should not have relied on a badly flawed interpretation of post-enactment history to justify a sweeping power to run roughshod over marriage rights in immigration cases, even in situations where the right to marry might otherwise impose a constraint. That's especially true given that similar reasoning could potentially be used to apply to other constitutional rights. If the Alien Friends Act of 1798 and 1880s immigration legislation qualify as relevant evidence, they could be used to justify almost any immigration restriction.
Obviously, Munoz is far from the first Supreme Court decision where the justices effectively exempted immigration restrictions from constitutional constraints that apply to other federal laws. Trump v. Hawaii, the 2018 travel ban decision is another recent example, and there are other such cases going back to the 19th century. But Munoz is still notable for its particularly slipshod historical analysis.
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