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On Monday, the Supreme Court announced that it would rehear arguments in Rodriguez v. Jennings in its next session, with a full court that includes its newest member, Justice Neil Gorsuch. The decision, at least temporarily, leaves in place a lower court ruling that detained immigrants have the right to a bond hearing every six months. But it’s not an encouraging sign for immigrants in detention.
The case will now be decided by five conservative justices. Immigrant advocates had hoped that Justice Anthony Kennedy, the court’s frequent swing vote, would provide the fifth vote in their favor. That may have been a tough sell: In 2003, Kennedy wrote a concurring opinion in Demore v. Kim stating that regular bond hearings were not needed for detained immigrants with criminal records. Cornell University law professor Stephen Yale-Loehr suggests that Monday’s announcement that the court will rehear Rodriguez indicates that the justices split 4-4. That would leave Gorsuch to break the tie, and so far he’s been a thoroughly reliable conservative vote.
More broadly, Rodriguez’s case highlights how the rapid expansion of immigration detention has overwhelmed the judicial system. Between 1995 and 2016, the number of immigrants in detention rose from 7,475 to 32,985, according to the American Civil Liberties Union. President Donald Trump’s budget proposes further increasing spending on immigration detention and removal by $1.5 billion.
Funding for the immigration courts that decide cases like Rodriguez’s has grown more slowly, contributing to a backlog of almost 600,000 immigration cases, up from about 175,000 a decade ago, according to the Transactional Records Access Clearinghouse. The result is that the detained immigrants who joined Rodriguez’s class action suit spent an average of 404 days in detention.
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