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February 18, 2022

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NILC Report Analyzes Potential Supreme Court Nominees Through an Immigration Lens

WASHINGTON — The National Immigration Law Center today published an analysis of three potential nominees to fill Justice Stephen Breyer’s Supreme Court seat following his retirement, focused on the candidates’ past rulings in immigration-related cases.

The report examines the records of Judge Ketanji Brown Jackson, Justice Leondra Kruger, and Judge J. Michelle Childs, all reportedly on the shortlist being considered by President Biden.

In light of congressional inaction and the persistent weaponization of immigration policy for political expediency, courts are increasingly called upon to resolve questions of immigration law and immigrants’ rights. The next Supreme Court Justice will have a hand in shaping the law around immigrants’ rights for decades to come.

Lisa Graybill, legal director of the National Immigration Law Center, said: “The Supreme Court plays a critical role in shaping immigration law and defining the rights of immigrants in the United States. Each of the women included in this report is highly credentialed and exceptionally well-qualified, and President Biden has a historic opportunity to nominate a justice who will defend the rights of all who call this country home.”

View the full report: The SCOTUS Shortlist and Immigration: What Their Previous Rulings Reveal

Summary highlights:

Judge Ketanji Brown Jackson (U.S. Court of Appeals for the D.C. Circuit) has the most developed record on immigration-related matters, and her record is mixed.  

• Notably, whether ruling for or against immigrants, Judge Jackson has consistently acknowledged the humanity of immigrants by declining to refer to them as “aliens” or “illegals;”  
• In a close call, Judge Jackson asserted the power of the federal court to check the Trump administration’s abuse of executive authority in expanding expedited removals; and  

• After the Trump administration changed documents so that they incorrectly stated asylum law, Judge Jackson held the Trump administration accountable by requiring it to provide relief for those harmed by the administration misstating the law. 
• However, Judge Jackson rejected a challenge to two Trump-era immigration programs that improperly prevented asylum seekers from consulting with a lawyer; 
• Judge Jackson denied a challenge to Trump’s border wall, holding that the challenged statutes were exempt from judicial review.

Judge J. Michelle Childs (U.S. District Court for the District of South Carolina) has only ruled on a few immigration-related cases, and the most substantive of those decisions raises concerns about her deference to executive power.  

• Judge Childs deferred to a federal agency that had failed to evaluate the work authorization for an undocumented immigrant who was the victim of a crime. By failing to intervene, she effectively permitted the agency to either delay or never issue the authorization.  
• However, Judge Childs allowed a lawsuit from a foreign-born doctor to proceed in which he claimed his employer was illegally changing his job requirements and threatening to terminate his work visa if he did not comply.  

As a member of the California Supreme Court, Justice Leondra Kruger’s (California State Supreme Court) relevant opinions generally concern the intersection of state law and immigration and demonstrate an awareness of the challenges immigrants face in asserting their rights.   

• Justice Kruger authored a unanimous decision allowing an undocumented immigrant to withdraw a guilty plea after he was merely advised that his plea might result in his removal from the country. Justice Kruger wrote this was inadequate to satisfy the legal requirement that immigrants be advised of immigration consequences of certain convictions.  
• In another unanimous decision, Justice Kruger held that a father who had abandoned his daughter at birth was not an essential party in her custody case. This finding allowed the child’s special immigrant juvenile case to move forward.     

To learn more, view the full report here.

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