In her opinion today in an immigration case (Santos-Zacaria v. Garland), Justice Jackson makes two dubious word choices that the six justices who join her opinion acquiesce in.
1. As Jackson observes in a footnote, her “opinion uses the term ‘noncitizen’ as equivalent to the statutory term ‘alien.’” As her citation reveals, Justice Kavanaugh did exactly the same thing in his majority opinion three years ago in Nasrallah v. Barr (as well as in Barton v. Barr). Justice Barrett did likewise, without any explanation or assertion of equivalence, a year ago in Patel v. Garland, as did Justice Sotomayor in United States v. Palomar-Santiago (2021). (There might well be other instances that have escaped my attention.)
But as Ninth Circuit judge Carlos Bea explained in a concurrence last year, the terms noncitizen and alien are not in fact “equivalent.” For example, a person born in American Samoa is a noncitizen but is not an alien.
Jackson and Kavanaugh evidently are concerned that there is something impolite about the statutory term alien. Bea, who was born in Spain, became enmeshed in deportation proceedings, and later became a U.S. citizen, forcefully disputes that:
This word [alien] is not a pejorative nor an insult. I certainly did not consider it an insult to be referred to as an alien in my deportation proceedings…. Alien is a statutory word defining a specific class of individuals. And when used in its statutory context, it admits of its statutory definition, not those definitions with negative connotations that can be plucked at will from the dictionary.
Bea points out that “the judiciary’s embrace of ‘noncitizen’ also comes at a real cost to litigants, who are now forced to make a lose-lose choice”:
On the one hand, a litigant could decide to use the statutory term “alien” in his briefing before the court, which risks offending devotees to “noncitizen.” On the other hand, a litigant could decide to use the nonstatutory term “noncitizen” in his briefing before the court, at the risk of showing a disdain for statutory definitions. Sadly, this quandary is laid bare by the principal opinion’s express association of the statutory term “alien” with the label “offensive.” By intimating that “alien” in its statutory context has this meaning, the majority has substantiated the concern that a contingent of judges will respond negatively to the term, even though its neutral, statutory definition governs this case. This situation is entirely unnecessary, and I hope my colleagues throughout the judiciary can be persuaded to dispense with such rhetoric altogether.
I do not see why justices who identify as textualists would shun the statutory term alien.
2. Jackson, who famously stated at her confirmation hearing that she could not define what a woman is, also refers to petitioner Santos-Zacaria as a “transgender woman.” I’m willing to bet that a sizeable percentage of Americans would be unclear whether a “transgender woman” is a woman who identifies as a man or a man who identifies as a woman. The use of the term, especially without explanation of what it means, strikes me as an inappropriate adoption of transgender ideology.
Ditto for Jackson’s use of feminine pronouns for the male petitioner. I am of course aware of the argument that some newly imposed etiquette requires that judges refer to a litigant by that litigant’s preferred pronouns. But as Fifth Circuit judge Stuart Kyle Duncan has pointed out:
Increasingly, federal courts today are asked to decide cases that turn on hotly-debated issues of sex and gender identity. In cases like these, a court may have the most benign motives in honoring a party’s request to be addressed with pronouns matching his “deeply felt, inherent sense of [his] gender.” Yet in doing so, the court may unintentionally convey its tacit approval of the litigant’s underlying legal position.
Further:
[U]se of a litigant’s preferred pronouns may well turn use of a litigant’s preferred pronouns may well turn out to be more complex than at first it might appear…. [O]ne university has created this widely-circulated pronoun usage guide for gender-dysphoric persons:
If Santos-Zacaria used ve/ver/vis pronouns for himself, would justices join an opinion that stated that Santos-Zacaria “fled vis native Guatemala in vis early teens”?
I acknowledge that there is often no neutral option on pronouns. Sometimes it is simple to finesse the issue by avoiding using any pronouns. But in many instances, that would be unworkably awkward. In such instances, it would be best for the writing justice or judge to explain the choice of pronouns. In other words, rather than simply use feminine pronouns for Santos-Zacaria, I think it would be much better if Jackson had added a footnote that said, “The parties’ briefs use feminine pronouns for Santos-Zacaria, so this opinion does so as well” or “In deference to petitioner’s declared gender identity, this opinion uses feminine pronouns to refer to Santos-Zacaria.” (I also recognize that justices and judges who join opinions give the author considerable leeway on style.)