By admin 
This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court. Keep up with all of our Supreme Court coverage and analysis by signing up for weekly email roundups. The best way to support our work—and unlock exclusive legal analysis—is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
Read more Susan Collins’ Secret Sauce
The end of this Supreme Court term may be in sight, but on Monday the high court announced that next term it would take up a case about just how long Immigration and Customs Enforcement can keep lawful permanent residents in immigration detention without any opportunity to post a bond. The federal government has been behaving like the answer is: “As long as they want.” Presumably emboldened by the Supreme Court’s ongoing hostility to the rights of immigrants, the government has asked the Supreme Court to rule that when a person is in detention with deportation proceedings pending, that person can be denied a bond hearing for the entirety of their detention, which could be months or even years. And given the American Civil Liberties Union’s attempts to get the court not to hear this specific case, it’s clear that immigrants nationwide risk heading toward the loss of another constitutional right.
The case the Supreme Court granted review for on Monday focuses on the detention of lawful permanent residents. Carol Black and Keisy G.M. are both green-card holders who have lived in the United States legally for decades. Black moved to New York from Jamaica in 1983. In 2000, he was convicted of a sex abuse crime, and served five years of probation, until 2005. Based on that conviction, ICE detained Black in 2019 and started deportation proceedings. They held him for seven months. Seeking to be back with his family while his investigation continued, Black sought a hearing where he could receive and post a bond, which the immigration judge would not grant. Ultimately, Black had to file a habeas petition in federal court, arguing that going seven months without a hearing violated his constitutional right to an individualized determination.
Similarly, G.M. is a lawful permanent resident from the Dominican Republic who has lived in New York City since 2011, where he was charged with assault after getting in a fight. He served a two-year sentence,and was released early. In events similar to Black’s, ICE came to G.M.’s home years later, took him into custody, and tried to remove him. But in a situation worse than Black’s, ICE detained G.M. for 21 months without a bond hearing, and only released him because of a court order in a separate case, which gave nationwide relief to a class of prisoners receiving unjust treatment during COVID.
The Court of Appeals for the 2nd Circuit ruled that both Black and G.M. had constitutional due process rights to a bond hearing. Immigration proceedings, the court explained, are civil, not criminal matters, and the Supreme Court has long suggested that there would be serious constitutional problems with a statute that allows indefinite civil detention. To be clear, a bond hearing does not guarantee that a person is released; a court is free to assess the flight risk, and to develop as many measures as it sees fit to ensure that the person shows up for the later proceedings. But the complete lack of that individual determination violates the right that someone cannot be denied “life, liberty, or property without due process of law.”
The Supreme Court might not agree. The statute the government relied on for Black’s and G.M.’s detentions is the Immigration and Nationality Act. And in previous cases, the Supreme Court has interpreted the law’s bond provisions narrowly. In 2003’s Demore, the court held that an initial bond hearing was not required by the statute. Then in 2018’s Jennings, Justice Samuel Alito held that this same statutory provision does not require a bond hearing after a particular period of delay, in a 5–3 ideological opinion (with Justice Elena Kagan recused). The court in Jennings, however, did not rule on whether the Constitution itself requires a bond hearing, which is what the 2nd Circuit decided here.
Read more The Absurd Spectacle of UFC Freedom 250
For decades, courts have considered due process challenges by relying on a test from Mathews v. Eldridge. The Mathews test weighs three factors: the private individual’s loss of liberty, the risk of error on the government’s part, and the government’s interest, usually measured in terms of the “fiscal and administrative burdens” of the government action. Judges regularly describe this test as “fact-heavy” and varying based on the details of each case. The 2nd Circuit relied on the long-familiar Mathews test here, crediting the government’s concerns about flight risks, but ultimately ruling in favor of requiring a bond hearing given the length of Black’s and G.M.’s detentions.
The government’s response to the 2nd Circuit’s ruling is unprecedented. Rather than arguing that the detentions of Black and G.M. were reasonable under the circumstances, the Department of Justice is asking the court to hold that all lawful permanent resident detainees lack the right to a bond hearing—under any circumstances and no matter how long they’ve been held. The government’s briefing makes this point clearly, saying the case “concerns whether Mathews is applicable at all.” In other words, the government would like courts to stop applying the case-by-case inquiry it’s done for half a century, and instead rule categorically against immigrant bond hearings no matter the length of their detention. And it gets worse: The Mathews test doesn’t just apply to disputes over immigration bond hearings, but any time a plaintiff alleges they’ve had their due process violated. In other words, if the court is willing to craft an exemption where it won’t apply it all, it could create a trend that undermines due process across the court system.
Given that SCOTUS’ conservative majority has already ruled against detainees on statutory grounds, it seems unlikely they’ll rule for detainees as a constitutional right. It’s probably for this reason that the ACLU, who represents the residents in this case, has argued that this case is moot: Both Black and G.M. have been released from custody, therefore there is no live controversy for the court to adjudicate over. But there are exceptions to mootness for when a case might become live again, and the government is likely to push to keep the case alive to get their preferred legal principle to use against future detainees. (For its part, the Supreme Court added the question of whether the case is moot to the question presented.)
The consequences of the government’s relentless attack on immigrants are made most obvious in Black’s case. In the middle of the proceedings and a hearing-less detention, Black decided to sell his home and business and voluntarily leave the country, ending the case against him and immigrating after 40 years of living in the U.S. Surely this was what the administration wanted all along, as it seeks to convert Black and brown “permanent” residents into temporary immigrants, one ICE detention at a time.
Read more The Legend of Susan Collins