Kagan Splits with Ginsburg and Sotomayor on Immigration and Habeas Corpus

While Justice Elena Kagan is clearly a liberal Supreme Court justice, she reminded us last week that many justices are hard to typecast, siding with conservatives against a couple of her liberal colleagues in Chaidez v. U.S.  

Part of the writ of habeas corpus is the power of federal courts to conduct collateral review of criminal convictions. Without getting into weeds of this complicated legal issue, federal judges can order a prisoner freed if his rights were violated.

In 2010, a divided Supreme Court in Padilla v. Kentucky held that when an non-citizen is on trial for a crime and prosecutors offer a plea deal, the Sixth Amendment right to legal counsel requires his lawyer to advise him of whether pleading guilty could impact his chances of being deported.

For criminals already convicted, if the Supreme Court declares a new rule of law, it does not retroactively apply to those convictions. But if the new case merely applies prior Supreme Court precedent, then it is retroactive because the trial judges in those earlier cases should have realized the defendant was entitled to relief under habeas corpus.

The question in Chaidez was whether Padilla had created a new rule of law in 2010, thus determining whether it could retroactively apply to free someone like Chaidez, who pleaded guilty to fraud in 2004 without knowing a criminal conviction could mean her deportation. And she is in fact being deported to Mexico.

Kagan wrote for a 7-2 majority–which included fellow liberal Justice Stephen Breyer–that the Padilla rule was new, and so the judge who allowed Chaidez to plead guilty without understanding the consequences did not deny her any rights. According to the Supreme Court’s (wrongly-decided) decision in Padilla, a defendant has a right to information about deportation, but that rule will only apply to future criminal cases, not go backwards in time to undo convictions already on the books.

Sotomayor dissented, joined by Ginsburg. She wrote that a 1984 Supreme Court case made all this crystal clear (it didn’t), and thus that Chaidez’s judge is 2004 should have been able to see this invisible rule. Thus Padilla only made official what was already been clear to everyone, and so it should apply even to closed cases, like Chaidez’s.

This is not the first time Kagan aligned herself with Breyer–a moderate-liberal–to the right of Ginsburg and Sotomayor. Kagan and Breyer joined Chief Justice John Roberts and the conservative wing of the Court in striking down Obamacare’s provision authorizing HHS Secretary Kathleen Sebelius to strip all Medicaid money from any state refusing to go along with Obamacare’s massive and unsustainable expansion of that entitlement as an unconstitutional coercion of the states.

Nor is Kagan the only one who breaks from liberal orthodoxy. In one case a couple years ago, Sotomayor joined Justice Anthony Kennedy and the conservatives in holding that pharmaceutical corporations have free speech rights.

So Ginsburg remains the most consistent liberal on the High Court, as everyone watches to see if President Obama’s appointees have any more surprises up the sleeves of their black robes.

Breitbart News legal columnist Ken Klukowski is on faculty at Liberty University School of Law.