In two shocking decisions this past week, the Supreme Court's so-called "Conservative" majority, which should more properly be called its Radical Right majority, ruled 6-3 in effect (without expressly saying so) that the US Constitution's guarantee against detention without due process of law doesn't apply to immigrants of color seeking asylum in the US from intolerable violence, poverty and corruption in Central America.

In a different case, the same 6-3 majority ruled that an Arizona law that was expressly intended to deny US citizens of color the right to vote was valid and did not violate the little that is left of the federal Voting Rights Act. Both these decisions are clear signals that, in the opinion of the Court's right wing majority, the basic rules of our democracy do not apply to people of color. While both decisions were ostensibly based on narrow, statutory grounds, their effect represents a major blow to the basic principles of our democracy and brings America closer to fascism.

In the immigration case, Johnson v. Guzman Chavez, decided on June 29, the issue was which one of two federal statutes, USC 1226 or 1231, applied in the case of a detained asylum seeker who had reentered the US illegally after having previously been deported. Writing for the majority, Justice Samuel Alito held that Section 1226, which allows the person to apply for a bond hearing pending a decision on whether the person should be removed from the US, did not apply.

Instead, Justice Alito wrote, Section 1231, which provides that there is no right to a bond heading, applied because the applicant had already been ordered removed. On the surface, this decision might appear to be merely a technical matter of statutory interpretation - an interpretation which was challenged, also on technical grounds, in the dissent by the three liberal Justices.

But while the result may have ostensibly been reached on technical grounds, the implications of the majority decision are staggering.

As Couthouse News Service reports:

"...Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, called Tuesday's ruling 'horrifying.' He compared it to the government gabbing a random citizen off the street , throwing them in jail and claiming they have no right to go before a judge to contest whether they're a flight risk or a danger to society."

https://www.couthousenews.com/justices-deny-bond-hearings-for-deported-asylum-seekers-who-reenter/

Meanwhile, in a voting rights case, Brnovich v Democratic National Committee, the same 6-3 majority upheld two restrictive Arizona voting laws which were expressly designed to make it harder for Latino and other minority US citizens to vote. The decision virtually eliminated whatever was left of the historic 1965 Voting Rights Act.

This decision, which as Justice Kagan pointed out in her dissent, comes at a time of a nationwide assault on minority voting rights by Republican-controlled state legislatures, is a direct threat to our democracy.

This voting rights decision also illustrates that the anti-immigrant racism which pervades so much of our immigration system today, and which put Trump in the White House for four disastrous years of peril for our democracy, and which could very possibly put him back in the White House in 2024, cannot be limited to affect the rights of noncitizens only.

A system which downgrades or ignores the basic human rights of immigrants of color will inevitably lead to extinguishing the rights of nonwhite American citizens as well, and to enting our democracy and replacing it with a white supremacist one-party dictatorship.

A sobering thought as America celebrates its independence on July 4.


For more reaction to the Supreme Courts' latest voting rights decision, see

https://theguardian.com/us-news/2021/jul/01/us-voting-rights-supreme-court-arizona



Roger Algase
Attorney at Law
Harvard College A.B.
Harvard Law School LL.B