Cite as: 533 U. S. 289 (2001)
Scalia, J., dissenting
tain judicial review of that order in a habeas corpus proceeding" (emphases added)); Shaughnessy v. Pedreiro, 349 U. S. 48, 52 (1955) ("Our holding is that there is a right of judicial review of deportation orders other than by habeas corpus . . ." (emphases added)); see also id., at 49.
The only support the Court offers in support of the asserted "longstanding distinction between 'judicial review' and 'habeas,' " ante, at 312, n. 35, is language from a single opinion of this Court, Heikkila v. Barber, 345 U. S. 229 (1953).2 There, we "differentiate[d]" "habeas corpus" from "judicial review as that term is used in the Administrative Procedure Act." Id., at 236 (emphasis added). But that simply asserts that habeas corpus review is different from ordinary APA review, which no one doubts. It does not assert that habeas corpus review is not judicial review at all. Nowhere does Heikkila make such an implausible contention.3
2 The recent Circuit authorities cited by the Court, which postdate IIRIRA, see Mahadeo v. Reno, 226 F. 3d 3, 12 (CA1 2000); and FloresMiramontes v. INS, 212 F. 3d 1133, 1140 (CA9 2000)), cited ante, at 314, hardly demonstrate any historical usage upon which IIRIRA was based. Anyway, these cases rely for their analysis upon a third Court of Appeals decision—Sandoval v. Reno, 166 F. 3d 225, 235 (CA3 1999)—which simply relies on the passage from Heikkila under discussion.
3 The older, pre-1961 judicial interpretations relied upon by the Court, see ante, at 312, are similarly unavailing. Ekiu v. United States, 142 U. S. 651 (1892), never purported to distinguish "judicial review" from habeas, and the Court's attempt to extract such a distinction from the opinion is unpersuasive. Ekiu did state that the statute "prevent[ed] the question of an alien immigrant's right to land, when once decided adversely by an inspector, acting within the jurisdiction conferred upon him, from being impeached or reviewed," id., at 663 (emphasis added; italicized words quoted ante, at 312); but the clear implication was that the question whether the inspector was "acting within the jurisdiction conferred upon him" was reviewable. The distinction pertained, in short, to the scope of judicial review on habeas—not to whether judicial review was available. Terlinden v. Ames, 184 U. S. 270, 278 (1902), likewise drew no distinction between "judicial review" and habeas; it simply stated that the extradition statute "gives no right of review to be exercised by any court
331
Page: Index Previous 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 NextLast modified: October 4, 2007