Court’s ‘Plain Meaning’ Is Elitist, Mean and Naive : Refugees: Inconvenient facts of the breadth of persecution are ignored on the way to a restrictionist decision.

“If a Nazi regime persecutes Jews, it is not, within the ordinary meaning of language, engaging in persecution on account of political opinion; and if a fundamentalist Moslem regime persecutes democrats, it is not engaging in persecution on account of religion.”

With this confused and inflammatory analogy, the Supreme Court last week dismissed the refugee claim of Jairo Zacarias, a young Guatemalan who fled his country after being threatened with death by two guerrillas carrying machine guns when he refused to join their fight against the government. Justice Antonin Scalia’s majority decision, characterized by three of his Supreme Court colleagues as “short-sighted and grudging,” held that the risk faced by Zacarias was not a consequence of his political opinion. Zacarias therefore failed to meet the legal definition of a refugee: a person who faces a serious risk of persecution on account of race, religion, nationality, political opinion or membership in a particular social group.

Scalia contended that the “plain meaning” of “political opinion” excludes situations in which a form of conduct (in this case, refusal to join the guerrillas) leads those in power to attribute an adverse political opinion to their adversary, resulting in a threat of serious harm. Rather, in Scalia’s view, the Guatemalan claimant would have been eligible for asylum only if he had made an “affirmative expression of political opinion,” presumably by way of an explicit announcement of his pro-government political affinities to the gun-toting guerrillas. Guatemala is a country where any expression of opinion about the government--for or against--may be a death wish. Because Zacarias wisely kept his political views to himself, he was denied protection by the United States.

The only thing “plain” about Scalia’s “plain meaning” interpretation is its attempt to avoid inconvenient legal facts in a single-minded quest to rewrite refugee law to achieve a restrictionist victory.

First, Scalia’s interpretation of the meaning of “political opinion” is fundamentally elitist. He seems to believe that only those with well-developed, clearly expressed political views can be at risk. That is clearly disproved by the notorious record of paranoid dictatorial regimes in Latin America and elsewhere, in which thousands of persons of no political profile have been tortured and murdered because they were (erroneously) perceived to represent a political threat.

Moreover, the majority of the Supreme Court in this case seems to have conveniently forgotten that the refugee definition under consideration is the international standard, explicitly imported into U.S. law as a means of enabling us to live up to our international obligations to refugees. The history of the U.N. Refugee Convention makes clear that the “political opinion” category was intended to embrace persons in flight from broadly based political persecution, whether or not these refugees had “affirmatively expressed” their dissident stance.

Justice Scalia further impugned the political rationale for Zacarias’ refusal to join the guerrillas by suggesting that he might have been motivated by a “desire to remain with family and friends.” Yet, as Justice John Paul Stevens pointed out in the minority opinion, “a simple desire to continue living an ordinary life” is itself a political position of the sort protected by asylum law. In any event, the decisive factor is what those with effective authority--be they armed insurgents, a fundamentalist regime or Nazis--consider to be political conduct. To the guerrillas, Zacarias’ refusal to be conscripted into their force made him an enemy of the cause.

The purely restrictionist purport of Scalia’s manipulation of legal doctrine becomes most clear in his conclusion that even if the risk faced by Zacarias was indeed political in nature, he had still not established that his fear of harm in Guatemala was “well-founded.” Credible evidence provided by Zacarias included testimony that the guerrillas had returned to the family home on two occasions to search for him. The minority opinion, noting that in law there need only be a “reasonable possibility” of persecution, succinctly disposed of Scalia’s evidentiary preoccupations by holding that “. . . any doubts concerning the sinister character of a suggestion to ‘think it over’ delivered by two uniformed masked men carrying machine guns should be resolved in (Zacarias’) favor.”

This case is not only a personal tragedy for Jairo Zacarias. It is part of a trend that should trouble all of us, in which a faction of the Supreme Court ignores legal norms in order to promote a political ideology. With refugee law’s strategic utility gone the way of the Cold War, a conservative judiciary is turning it into something punitive: For victims of non-communist persecution, application of the “plain meaning” standard can be plain mean.