Supreme Court nominee Brett Kavanaugh

Jack Gruber /USA TODAY

California Immigration Case Is Early Test For Justice Kavanaugh

Doug Sovern
October 10, 2018 - 10:13 am

The aggressive, emotional side of Brett Kavanaugh that was on display during a contentious Senate hearing was nowhere to be found as he heard arguments in a Supreme Court case that originated in California on Wednesday.

The case, Nielsen v. Preap, concerns two Bay Area immigrants who sued the federal government for trying to deport them, years after serving sentences for drug-related crimes.

The case reached the Supreme Court after the Trump administration appealed a ruling from the 9th Circuit Court, based in San Francisco, which said Homeland Security agents must detain someone upon their release, not years later. 

Rory Little, a law professor at the University of California Hastings, said it’s difficult to predict which way Kavanaugh will lean in the decision.

“As a matter of plain language, this case should come out in favor of the immigrants,” Little said. A justice following in Justice Scalia’s footsteps, adhering to an “originalist” interpretation of the Constitution, would tend to rely on such language.  

“It sort of poses two competing concerns for a conservative,” said Little. “One is, follow the plain language. The other is [to] keep people in detention if they’re subject to removal.”

Kavanaugh’s behavior on the bench was a far cry from his aggressive performance before the Senate Judiciary Committee, when he refuted allegations of sexual assault, Little said. 

“He was quite deferential,” said Little, who noted that the justices were “falling over themselves” to be conciliatory and nice to one another, with one exception — Justice Samuel Alito. 

“I could be wrong,” Little added, “but I really do believe that intemperate statement he made on the Senate floor is not characteristic of him. I don’t think he’s going to be throwing any bombs.”

Written by Jordan Bowen.