Karla Mari McKanders (Vanderbilt University, School of Law) has posted Deconstructing Invisible Walls: Sotomayor’s Dissents in Era of Immigration Exceptionalism (William & Mary Journal of Women and the Law, Vol. 27, No. 1, 2020) on SSRN. Here is the abstract:
Since 2017, the U.S. Supreme Court has granted certiorari and considered twenty immigration cases. In 2019, the Supreme Court issued eight decisions focusing on immigration issues. There are many different theories accounting for the proliferation of immigration cases on the Supreme Court’s docket. Some immigration scholars attribute the proliferation to the decline of the plenary powers doctrine, while others attribute the increase in the Executive Branch’s unilateral actions restricting immigration in the United States. With the proliferation of immigration cases before the Supreme Court, Justice Sonia Sotomayor has emerged as a strong voice of dissent. Over the past few terms, Sotomayor has written more dissents than any other Justice. The article examines how Justice Sotomayor’s recent immigration dissents force us to grapple with how the long standing plenary powers doctrine has privileged borders over our most sacred legal commitments – constitutional rights and adherence to rule of law. This article argues that Justice Sotomayor’s immigration decisions provide a significant break in historical deference to executive actions and are forcing us to re-conceptualize the ways in which the immigration system has historically has abrogated the rights of immigrants of color.