Intense anticipation this morning at the Supreme Court. UPDATE: Reading Kerry v. Din.

"We have sixteen minutes until 10 am, when the Court will start to release opinions," says SCOTUSblog, live blogging from the Court.

UPDATE: There are 3 cases, but it's Kerry v. Din (PDF) that most interests me because it has a right-to-marry angle:

Respondent Fauzia Din petitioned to have her husband, Kanishka Berashk, a resident citizen of Afghanistan and former civil servant in the Taliban regime, classified as an “immediate relative” entitled to priority immigration status. Din’s petition was approved, but Berashk’s visa application was ultimately denied. A consular officer informed Berashk that he was inadmissible under §1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but the officer provided no further information. Unable to obtain a more detailed explanation for Berashk’s visa denial, Din filed suit in Federal District Court, which dismissed her complaint. The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons.

The Supreme Court vacates the 9th Circuit's judgement:

SCALIA, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and THOMAS, J., joined. KENNEDY, J., filed an opinion concurring in the judgment, in which ALITO, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

ADDED:  Justice Scalia, writing for himself and the Chief Justice and Justice Thomas, rejects the notion that there is a fundamental liberty interest within the meaning of the Due Process Clause of the 5th Amendment in living together with one's spouse:

What JUSTICE BREYER’s dissent strangely describes as a “deprivation of her freedom to live together with her spouse in America” is, in any world other than the artificial world of ever-expanding constitutional rights, nothing more than a deprivation of her spouse’s freedom to immigrate into America.

Under the precedents — which Justice Scalia doesn't much like but purports to follow — the question requires asking what interests are "objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [they were] sacrificed."

Although there are some precedents about the fundamental liberty interest in marriage, Scalia says, they have to do with government forbidding marriage. Din tried to mix in the precedents that have to do with parents' interest in raising their children and a couple's interest in the privacy of "the sacred precincts of the marital bedroom." But this didn't add up to a protectible interest, especially given the long history of federal control over immigration.

In fact, Scalia points out, the federal government used to strip American citizenship from a woman who married a foreign citizen. Under the Expatriation Act of 1907, Din herself wouldn't be a citizen. That's not to say that "asymmetric treatment of women citizens" would stand up today, but it's enough — according to Scalia — to show that there isn't a deeply rooted tradition of respecting the marital togetherness in the context of immigration.

Justice Kennedy concurs,  joined by Justice Alito, and provides the 4th and 5th votes. He rejects answering the question whether there's a fundamental liberty interest. He prefers to say, where there is or isn't, there was due process — Din got all the process that was due when the government informed her husband that application for a visa was denied the provision of the immigration statute excludes persons with a connection to terrorism. It's up to Din to allege with some "particularity" that the government was in bad faith.

Now, let's look at the dissenting opinion, written by Justice Breyer and joined by Justices Ginsburg, Sotomayor, and Kagan. Breyer emphasizes that Din seeks procedural, not substantive, protection for her interest in being about to live with her husband in the United States. This is a matter of precedent he says:

Compare Wilkinson v. Austin, 545 U. S. 209, 221 (2005) (Due Process Clause requires compliance with fair procedures when the government deprives an individual of certain “liberty” or “property” interests), with Reno v. Flores, 507 U. S. 292, 302 (1993) (Due Process Clause limits the extent to which government can substantively regulate certain “fundamental” rights, “no matter what process is provided”). Cf. Smith v. Organization of Foster Families For Equality & Reform, 431 U. S. 816, 842, n. 48 (1977) (liberty interests arising under the Constitution for procedural due process purposes are not the same as fundamental rights requiring substantive due process protection).

Our cases make clear that the Due Process Clause entitles her to such procedural rights as long as (1) she seeks protection for a liberty interest sufficiently im- portant for procedural protection to flow “implicit[ly]” from the design, object, and nature of the Due Process Clause, or (2) nonconstitutional law (a statute, for example) creates “an expectation” that a person will not be deprived of that kind of liberty without fair procedures. Wilkinson, supra, at 221.

The liberty for which Ms. Din seeks protection easily satisfies both standards. As this Court has long recognized, the institution of marriage, which encompasses the right of spouses to live together and to raise a family, is central to human life, requires and enjoys community support, and plays a central role in most individuals’ “orderly pursuit of happiness,” Meyer v. Nebraska, 262 U. S. 390, 399 (1923). See also, e.g., Griswold v. Connecticut, 381 U. S. 479, 485–486 (1965); Zablocki v. Redhail, 434 U. S. 374, 386 (1978); Moore v. East Cleveland, 431 U.S. 494, 500–503 (1977) (plurality opinion); Smith, supra, at 843. Similarly, the Court has long recognized that a citizen’s right to live within this country, being fundamental, enjoys basic procedural due process protection. See Ng Fung Ho v. White, 259 U. S. 276, 284–285 (1922); Baumgartner v. United States, 322 U. S. 665, 670 (1944).

There's still the question what process is due, and, as we've seen, Kennedy and Alito said that Din got enough process. Breyer acknowledges that the usual approach is to balance the private interest, the risk of an erroneous deprivation that private interest if the asked-for process isn't given, and the Government’s interest in not giving any more procedure than it's already giving. Breyer doesn't prefer this balancing approach, but the government still deserves to lose here because Din's interest is "important," there's a "significant" risk of erroneous deprivation in not giving Din the process she wants — more of a reason for denying the visa — and the government has only a "small" interest in avoiding giving her more of a reason. It wasn't enough, Breyer says, to just cite the statutory provision to which it refers, §1182(a)(3)(B), because that's "a complex provision with 10 different subsections, many of which cross-reference other provisions of law."

[S]ome subsections provide the visa applicant with a defense; others do not... Taken together the subsections, directly or through cross-reference, cover a vast waterfront of human activity potentially benefitting, sometimes in major ways, sometimes hardly at all, sometimes directly, sometimes indirectly, sometimes a few people, sometimes many, sometimes those with strong links, sometimes those with hardly a link, to a loosely or strongly connected group of individuals, which, through many different kinds of actions, might fall within the broad statutorily defined term “terrorist.” 

Din also deserved a more particular statement of the factual bases for the decision:

Perhaps the Department denied the visa because Ms. Din’s husband at one point was a payroll clerk for the Afghan Government when that government was controlled by the Taliban. See ante, at 5 (opinion of KENNEDY, J.). But there is no way to know if that is so.

The process that is due would allow Din "to assess the correctness of the State Department’s conclusion," "to determine what kinds of facts she might provide in response," and to figure out whether there are any defenses that apply.


Breyer rejects the notion that national security outweighs all that:

I do not deny the importance of national security, the need to keep certain related information private, or the need to respect the determinations of the other branches of Government in such matters. But protecting ordinary citizens from arbitrary government action is fundamental.... [H]ow can we take proper account of security considerations without knowing what they are, without knowing how and why they require modification of traditional due process requirements, and without knowing whether other, less restrictive alternatives are available? How exactly would it harm important security interests to give Ms. Din a better explanation? Is there no way to give Ms. Din such an explanation while also maintaining appropriate secrecy? I believe we need answers to these questions before we can accept as constitutional a major departure from the procedural requirements that the Due Process Clause ordinarily demands.