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SCOTUS Robberies: Breyer and Aliens, Real and Metaphorical

By Robyn Hagan Cain on February 13, 2012 3:09 PM

Justice Stephen Breyer was robbed at his home on the West Indies island of Nevis around 9:00 p.m. last Thursday night, reports the Associated Press. The robber, armed with a machete, took approximately $1,000 in cash from Breyer, his wife, Joanna, and their guests. No one was injured.

Breyer is not the first Supreme crime victim. In the last 20 years, Justice David Souter was attacked while jogging in Washington, D.C., and Justice Ruth Bader Ginsberg was the victim of a purse-snatching, according to the AP.

Justice Breyer's Sunday night incident isn't the only controversy hitting the Court today. Shifting from physical robberies to metaphorical robberies, District Judge Jed Rakoff, the SEC's favorite New York-based federal jurist, is accusing the Solicitor General's office of robbing the petitioners in Nken v. Holder of a fair chance before the Nine.

In Nken, the Court addressed whether aliens are entitled to a stay of deportation while their appeals are pending in the courts. The Supreme Court ruled in 2009 that they are not. Chief Justice John Roberts, who wrote the majority opinion in the case, seemed to focus on whether the burden of removal was sufficient to establish irreparable injury, according to Thomson Reuters News & Insight.

The Court relied on an amicus brief from the Solicitor General's office in the opinion, writing that "aliens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal."

Judge Rakoff's objection is that there is no "policy and practice" affording aliens this kind of relief, despite the Solicitor General's indications to the contrary.

Several public interest groups filed FOIA requests with the Justice Department, the State Department and the Department of Homeland Security regarding this alleged "policy and practice" last year. The Solicitor General's office returned a four-page email chain, which was almost completely redacted, along with assertions that the messages were privileged.

The interest groups disagreed and sued.

Last week, Judge Rakoff took the position that the email messages are not privileged, agreeing that the "only the Solicitor General communications could clarify the supposed policy or reveal that the Justice Department mistakenly cited a policy that doesn't exist," according to Thomson Reuters News & Insight.

What do you think? Did the Supreme Court get hoodwinked by the Solicitor General's office? Were the Nken petitioners robbed of a fair shake before the High Court?

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