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Retired Supreme Court Justice John Paul Stevens’ Lasting Legacy on Immigration Law

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Justice John Paul Stevens
Retired Justice John Paul Stevens will have a lasting legacy on immigration law.

By Daniel Beach and Monica Bansal

Supreme Court Justice John Paul Stevens has had an instrumental effect on immigration law through his participation in various landmark cases.

In Padilla v. Kentucky[1], Justice Stevens, writing for the five-justice majority, determined that trial attorneys have a constitutional obligation to inform their clients of the immigration-related consequences of a criminal conviction. He wrote, “Our long-standing Sixth Amendment precedents, the seriousness of the deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.” Furthermore, Justice Stevens wrote the majority opinion in Immigration and Naturalization Service v. Cardozo-Fonseca[2] and liberalized the standard of proof necessary to show a well-founded fear of persecution.

Justice Stevens also wrote a concurrence in Reno, Attorney General, et al. v. American-Arab Anti-Discrimination Committee et al[3]. This case considered whether resident aliens threatened with deportation because of their political affiliations are entitled to an immediate hearing in federal court on claims of First Amendment violations. During the case, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which restricts judicial review of the Attorney General’s “decision or action” to “commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.” The Court held that the IIRIRA deprives federal courts of jurisdiction over aliens’ suits alleging that actions of the Attorney General are selectively enforced. Many observers interpreted the Court’s decision as restricting First Amendment rights of all non-citizens, including legal immigrants.

In addition, Justice Stevens’s support for habeas rests on a deeper commitment to ensuring access to the courts. Indeed, his commitment became clear in a decision involving habeas in the immigration decision, INS v. St. Cyr[4], which involved the application of newly enacted restrictions on the availability of habeas for aliens in the context of deportation. Justice Stevens relied on a strong presumption in favor of judicial review of administrative action and on the longstanding rule requiring a clear and unambiguous statement of congressional intent to repeal habeas jurisdiction.

Supreme Court Nominee Elana Kagan’s potential confirmation could also have a more indirect effect on how the nation’s immigration population is treated and who is and isn’t protected by the U.S. Constitution. Kagan’s participation in Padilla v. Kentucky[5] and Kucana v. Holder[6] suggest that Kagan takes a relatively neutral approach to immigration cases, but still appears to hold that immigrants are protected by the U.S. Constitution. However, the cases do not carry any direct implications for how Kagan would approach the constitutionality of Arizona’s immigration law. The Supreme Court has been waiting for months on Kagan to file a brief giving the administration’s view on whether Arizona’s sanctions on employers who hire undocumented workers conflicts with federal immigration law — a concept that is central to the constitutionality of Arizona’s most recent immigration law.

Although Elena Kagan and Justice Paul Stevens come from very different backgrounds, Obama is essentially replacing one liberal with another and thus the voting pattern will not likely be affected. Nonetheless, what the more liberal wing of the Court will lose is a justice of unquestionable integrity and a distinctive voice.


[1] 130 S. Ct. 1473 (2010).

[2] 480 U.S. 421 (1987).

[3] 525 U.S. 471 (1999).

[4] 533 U.S. 289 (2001).

[5] 130 S. Ct. 1473 (2010).

[6] 129 S. Ct. 2075 (2009).

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