In the other contentious case, Mullin v. Al Otro Lado, a 6-3 majority held that an alien standing in Mexico does not “arrive” in the United States by attempting, and failing, to enter this country. The Immigration and Nationality Act, the opinion held, neither entitles such a person standing in Mexico to apply for asylum nor requires an immigration officer to inspect him. But the “Wise Latina” Sotomayor delivered an oral dissent from the bench, somehow analogizing the decision with the tragic tale of the St. Louis, the infamous ship that left Nazi Germany in 1939 with some 900 Jewish refugees aboard but was never allowed to land. The ship was turned away from Cuba, Miami, and Canada, and had to return to Europe. Many of the Jews on the ship died in the Holocaust. Sotamayor’s shameless appeal to emotion somehow means that Mexicans at our border shouldn’t be turned away when they have neither applied for refugee status nor entered out country.

Her interminable dissent relies on what the meaning of “in” is while relating heart-tugging anecdotal evidence and making dubious analogies. (Sotomayor says she has arrived in D.C. when she lands at Reagan National Airport, which is in Virginia.) She concludes by arguing,

“The consequences of today’s decision are predictable. More people will die. More people will attempt to cross the border illegally, and some will make it while others will not. More people will be forced to walk along the U. S.-Mexico border in dangerous conditions, trying to find a port that will inspect them. More people will turn back and be subjected to violence because of something they cannot or should not have to change about themselves, such as their race, religion, nationality, or political opinion.”

Make the legal immigration process less secure because good illegal immigrants will break the law and cross the border illegally if we don’t. And of course, all those illegal immigrants have crossed the border to flee violence and discrimination. Got it! Nevertheless, if Congress’s intent with that law or any law isn’t clear, and “in” the United States doesn’t really mean “in” the United States but almost in the United States, it’s Congress’s job, not the Court’s to clarify the law. Nor is it the Court’s job to make national immigration policies and their administration kinder and gentler.

As with conservative attacks on the Court for not eliminating birthright citizenship, the Left’s call for judicial legislation and activist judging is itself contrary to the Constitution.