“Would you prevail had Zadvydas not been decided?” Justice Thomas asked Pratik A. Shah, a lawyer for Mr. Arteaga-Martinez.
Mr. Shah responded that “if this court were to overrule Zadvydas, we lose.” But he added that the government had not asked the court to do that.
Justice Elena Kagan said there was another way to look at the question. “Suppose,” she said, “that this court thinks about Zadvydas as, you know, a precedent that needs to be applied but not one that is altogether comfortable and should not be extended.”
Mr. Shah rejected the premise of the question. “I am not asking this court to extend Zadvydas one millimeter,” he said.
Justice Amy Coney Barrett asked whether the principle in that decision was limited to immigrants with nowhere to go or also applied to proceedings that “continue to drag on and on and on.”
Austin Raynor, a lawyer for the federal government, took the narrower view.
Justice Kagan said she would not draw a distinction between the two circumstances. “I’m not sure,” she said, “it quite matters to the person who’s in detention whether you’re in detention because they can’t find a country or whether they’re in detention because the immigration system is backed up.”
Mr. Raynor, who said the next hearing on Mr. Arteaga-Martinez’s effort to avoid deportation was scheduled for 2023, said some kinds of court challenges to immigrants’ detentions might still be possible if the court were to rule against bail hearings.