This article originally appeared in Ms. Magazine on October 10, 2020. You can find the original here.
Since 2017, the Supreme Court has upheld the most egregious attacks on immigrants’ rights. Adding Amy Coney Barrett to the Supreme Court would make this astronomically worse.
I was a Supreme Court fangirl. As an immigration attorney, I naturally named my son Brennan after Justice William J. Brennan, Jr. in honor of his eloquent opinion in a 1982 case that a state may not deny undocumented children access to public schools.
Throughout its long history, the Supreme Court has not always behaved admirably, but its decisions seemed to “bend towards justice”—from racial justice, to workers’ rights, to women’s rights, LGBTQ rights and immigrants’ rights.
That slow, but seemingly steady advance towards an equal and open America stuttered to a halt in 2016, when President Obama was denied the right to place Judge Merrick Garland on the high court.
Since that apocryphal moment in American history, two conservative judges have been placed on the Supreme Court. The “center” of the Court has skewed dramatically to the right and as a result, minority rights are truly vulnerable.
Chief Justice John Roberts is now the pivotal vote in the Court, voting with the majority almost always. Should this Court gain an even more radical adherent to the conservative agenda, generations of progress will be on the chopping block—and most vulnerable to these winds of change are the immigrants among us.
To understand the impact of a potential Justice Amy Coney Barrett and likely future appointees should Trump be reelected, one must first understand the current lay of the land.
Since 2017, the Supreme Court has upheld the most egregious attacks on the immigration process and immigrants’ rights:
The Muslim Ban: In 2018, after a fierce battle over the clearly xenophobic travel ban on certain majority-Muslim countries, the Supreme Court permitted the ban to be enacted. As a result, immigration from those countries has been essentially eliminated. In my own practice, I’ve been unable to obtain a green card for an Iranian Alzheimer’s expert with a job offer at a major university and acknowledgement from U.S. Citizenship and Immigration Services (USCIS) that her work is exceptional and in the U.S. national interest.
The rights of asylees: The Supreme Court permitted the Trump administration to fast-track deportations of asylum-seekers without right to a hearing before a judge. The Court also upheld the administration’s “Remain in Mexico” policy, mislabeled the “Migrant Protection Protocols,” creating a tragic and punitive situation where asylees with meritorious cases languish in unsafe conditions in Mexico awaiting a deliberately slowed-down asylum process. An ACLU attorney described these changes: “There will essentially be no asylum at the Southern border.”
“The green card wealth test”: The Supreme Court permitted USCIS to implement a rule that will make huge swaths of green card applicants vulnerable to a denial of their green cards due to arbitrary and complex criteria and cumbersome documentary requirements that demean immigrants based on their credit scores, tax filings, and educational attainment. This was a particularly bitter loss because it is both substantively and emotionally harmful.
There have been some surprising victories—primarily two John Roberts decisions denying the Trump administration the right to arbitrarily add a citizenship question to the census with no justification, and the decision to deny the administration the right to end the Deferred Action for Childhood Arrivals (DACA) program without going through the appropriate steps. The decisions were not made on substantive grounds, but procedural ones.
Of the “Remain in Mexico” decision, Justice Sonia Sotomayor wrote:
“Today’s opinion handcuffs the judiciary’s ability to perform its constitutional duty to safeguard individual liberty… Our constitutional protections should not hinge on the vicissitudes of the political climate.”
And yet, that’s exactly what has happened over the last three years and would surely happen in the coming four upon a Trump reelection.
Amy Coney Barrett’s Record on Immigration
Amy Coney Barrett—a self-professed religious conservative—has a record of repeatedly refusing to review cases involving immigrants seeking humanitarian relief from deportation.
President Trump walks with Amy Coney Barrett on September 26, following announcement ceremonies in the Rose Garden. (White House Photo/ Shealah Craighead)
While her record on immigration is not lengthy, to me one key ruling was a dissent in which she supported the “green card wealth test” in a 40-page opinion. Her decision was on “procedural grounds,” ignoring the practical and deeply unchristian impact of the rule demonizing and casting out those in need.
The stakes of the 2020 election could not be higher for immigrants. The thousands of less “sexy” battles that have been playing out in the courts have primarily not yet been at the Supreme Court—the agencies that handle immigration cases have been mangled and their missions contorted to an anti-immigrant bent.
As a result, to gain approval under a law that clearly warrants it, more and more immigrants are being forced to literally sue the U.S. government in federal court to assert their basic eligibility.
If hard-line immigration opponents have their way, these cases will surely increase in number, and bubble up to the Supreme Court. If what we have waiting there is a series of justices without the diversity and empathy to see immigrants as their fellow human beings, then our proud history as a “Nation of Immigrants” will come crashing down.