How Justices Kagan and Roberts Characterize Justice Sotomayor’s Dissent

June 9th, 2014

In Scialabba v. Cuellar de Osorio, both Justices Kagan and, to a lesser extent, CJ Roberts use some pretty strong language to characterize Justice Sotomayor’s dissent.

From Kagan’s opinion:

  • The dissent responds to this fact only with a pair of non-sequiturs. Post, at 18–19 (opinion of SOTOMAYOR, J.).
  • but cf. post, at 14 (SOTOMAYOR, J., dissenting) (wrongly stating that under that rule conversion occurs upon the agency’s re- ceipt of proof of the change).
  • It is, therefore, impossible to understand the dissent’s statement that conversion of such a petition to an appropriate category requires “ ‘substantive alteration’ to [the] petition.” See post, at 19, n. 8 (opinion of SOTOMAYOR, J.).
  • The dissenting opinion reiterates the first two arguments, though with slight variation and in opposite order, while forgoing the third. See post, at 9–19 (opinion of SOTOMAYOR, J.) (hereinafter the dissent). We find none of the contentions persuasive
  • Still, the respondents’ view of the timing of conversion is better than the dissent’s.
  • Further, the dissent compounds its error by suggesting a baseless alternative date
  • The only thing appearing to support the dissent’s date is a single-minded resolve, statutory text and administrative practice notwithstanding, to grant relief to every possible aged-out beneficiary.
  • Nor does the dissent offer any serious aid to the respondents.
  • The dissent appears to think that something helpful to its view follows from repeating the word “shall” and changing the subject of the commands. See post, at 9–10.
  • And the dissent’s citation of United States v. Ron Pair Enterprises, Inc., 489 U. S. 235 (1989), adds nothing to its argument….What relevance that interpretation bears to this case eludes us.
  • The dissent claims that USCIS “administered priority date retention in exactly this manner” before the CSPA’s enactment, post, at 10, but that confident assertion is just not so—or at least not in any way that assists the respondents.
  • And the other provisions the dissent cites (which, unlike §204.2(a)(4), continue to operate) similarly fail to support the dissent’s position, because they enable an alien to retain a priority date only if attached to an existing valid petition.

And from the Chief Justice’s concurring opinion, there is much more gentle language.

  • For the same reason, I do not agree with the contention in JUSTICE SOTOMAYOR’s dissent that the first clause of section 1153(h)(3) unambiguously “answers the precise question in this case.” Post, at 6.
  • JUSTICE SOTOMAYOR’s dissent accuses me of “ignor[ing]” the first clause of section 1153(h)(3), “treating [that] clause as a nullity,” and denying the clause “effect.” Post, at 20–21. But that point is correct only if the reader adopts JUSTICE SOTOMAYOR’s own premise, that the first clause has operative effect on its own. I give the statute’s first clause precisely the (limited) effect it is meant to have: it defines who is potentially affected by section 1153(h)(3). JUSTICE SOTOMAYOR’s re- sponse to the campus housing example proves my point by acknowledg- ing that who gets relief under a statute depends entirely on the mean- ing of the statute’s operative provision, not on the reach of the introductory clause. See post, at 21. The Court would not reject a reasonable interpretation of the term “cost of off-campus housing,” as JUSTICE SOTOMAYOR’s dissent would, simply because the IRS could have interpreted the term to cover more students who fall within the prefa- tory clause.
  • JUSTICE SOTOMAYOR’s dissent is wrong that “the relief promised in §1153(h)(3) (priority date retention and automatic conversion) can be given” to every aged-out child in every preference category, post, at 21, and it therefore follows that the statute is ambiguous.