Thomas, dissenting, objects to alien's right to be heard

 In a 7-2 decision the United States Supreme Court ruled that the federal courts have the authority to review the petition of an alien deported for commission of a crime who seeks to return to the United States.  The narrow statutory question is whether the Immigration and Nationality Act's [INA] limitation of review to "questions of constitutionality and law" extends to equitable considerations regarding whether an appeal is timely.  Justice Stephen Breyer, writing for the majority, takes an expansive view, as appears below.  But the headline is that Justice Clarence Thomas took the opportunity to urge the courts to further close the opportunities to people to seek justice. In this case it relates to the ability of individuals to seek review of federal agency actions.  Marcia Coyle comments below.  But first some language from Breyer to introduce the context. - gwc

Another subdivision [of the INA] , 8 USC §1252(a)(2)(D), which we shall call the Limited Review Provision, says that in such instances courts may consider only “constitutional claims or questions of law.” The question that these two consolidated cases present is whether the phrase “questions of law” in the Provision includes the application of a legal standard to undisputed or established facts.
Another subdivision, §1252(a)(2)(D), which we shall call the Limited Review Provision, says that in such instances courts may consider only “constitutional claims or questions of law.” The question that these two consolidated cases present is whether the phrase “questions of law” in the Provision includes the application of a legal standard to undisputed or established facts. 

A Doubting Thomas Raises More Questions
by Marcia Coyle, National Law Journal
In the court's immigration decision Monday in Guerrero-Lasprilla v. Barr, Thomas, in part of his dissenting opinion, said he has come "to have doubts about our modern cases applying the presumption of reviewability." Justice Samuel Alito Jr. did not join this part of the dissent.

Courts understand the presumption to mean they generally have jurisdiction to grant relief when individuals are harmed by unlawful agency actions—even where a statute is silent about judicial review. Thomas wrote that the modern presumption of reviewability, which the majority relied on in its decision, "goes far beyond this traditional approach."

Thomas cited three problems: "First, it elevates the supposed purpose or 'spirit' of the Administrative Procedure Act over the statute’s text. Second, the court’s test for rebutting the presumption relies heavily on legislative intent, inviting courts to discern the mental processes of legislators through legislative history." Third, to overcome the presumption, the clear-and-convincing-evidence requirement of congressional intent to preclude judicial review "appears to conflict with the text of the Constitution." —Marcia Coyle