Sotomayor Slips And Says “Illegal Aliens”

September 7th, 2014

The Times reports that Justice Sotomayor surprised a group of 25 lawyers, forming the inaugural Immigrant Justice Corps. The Justice took the occasion to praise the lawyers for providing representation, and helping immigrants “get[] into this country.”

But he was upstaged in his own chambers by a fellow advocate for immigrants. Citing a study on the shortage of legal representation, Justice Sotomayor said, “You don’t stand a chance of getting into this country if you’re unrepresented.” But, if you are represented, she added, “the odds are more in your favor.”

Speaking to the group, she said, “You’re changing those lives for a lot of people.”

Tiptoeing around a young lawyer’s question about what an ideal immigration system might look like in 100 years, Justice Sotomayor suggested that the current one was not meeting society’s needs. “A lot of the immigrants who are coming, like some of those in this room, are coming because of asylum needs,” she said.

I suppose the goal of any advocate is to help a client win, in this case “get[] into this country.” I should hope that this is also not the goal of the Justice, whose aspirations should be to encourage lawyers to zealously advocate for their clients rights, come what may. It would be a bit odd for a Justice to tell a bunch of criminal defense attorneys–you don’t stand a chance of getting out of a search that yielded incriminating evidence if you’re unrepresented. But if you are represented, the odds are more in your favor. Anyway.

Though, Justice Sotomayor did seem to slip, and used the phrase “illegal immigrant.”

Domestic labor problems also weighed on her. “We’re in a really dysfunctional system right now, where the community obviously is hiring and employing illegal aliens, so there’s a need,” she said.

In using the phrase “illegal aliens,” Justice Sotomayor inadvertently broke her own rule to instead use the phrase “undocumented.” The rule, which she explained earlier to the group, was a way to recognize that immigrants who break the law are not necessarily bad people.

During a conversation at Yale Law School, Justice Sotomayor addressed her decision to use the phrase “undocumented immigrant” rather than the phrase used in the statute, “illegal alien.”

Sotomayor also addressed her use of the term “undocumented immigrants” rather than the term “illegal alien,” characterizing the immigration issue as a regulatory issue.

“To dub every immigrant a criminal because they are undocumented, to call them illegal aliens seemed and has seemed insulting to me,” said Sotomayor. “I think people then paint those individuals as less than worthy human beings and it changes the conversation.”

Justice Sotomayor first used the term “undocumented immigrant” in Mohawk Industries v. Carpenter in December 2009, her first opinion on the bench.

The following term, in Chamber of Commerce v. Whiting, the question presented used the statutory term, “unauthorized aliens.” During oral argument, Justice Sotomayor used the term “illegal alien,” but quickly corrected herself and said “undocumented aliens.”

JUSTICE SOTOMAYOR: — just — just focus the question? Because we keep talking about whether the APA-type definition of licensing is what Congress intended or not, but you don’t disagree that Congress at least intended that if someone violated the Federal law and hired illegal aliens of Hispanic — undocumented aliens and was found to have violated it, that the State can revoke their license, correct, to do business?

Justices Scalia and Alito had no problem, and used the phrase “illegal alien.”

In 2012, in Arizona v. United States, Justice Sotomayor used the phrase “illegal alien.”

JUSTICE SOTOMAYOR: What happens if — this is the following call — the call to the — to the Federal Government. Yes, he’s an illegal alien. No, we don’t want to detain him. What does the law say, the Arizona law say, with respect to releasing that individual?

In 2013, in Moncrieffe v. Holder, Justice Sotomayor consistently uses the term “noncitizen.” Nowhere in her opinion does the word “alien” appear. Justice Alito takes exception to this, and adds in a footnote:

1 “Alien” is the term used in the relevant provisions of the Immigration and Nationality Act, and this term does not encompass all noncitizens. Compare 8 U. S. C. §1101(a)(3) (defining “alien” to include “any person not a citizen or national of the United States”) with §1101(a)(22) (defining “national of the United States”). See also Miller v. Albright, 523 U. S. 420, 467, n. 2 (1998) (GINSBURG, J., dissenting).

In a few short years, Justice Sotomayor has gone from “undocumented immigrant” to “undocumented alien” to “noncitizen.” And back to “illegal alien.”