The majority did not just greenlight an especially odious immigration policy without any explanation; it did so in a case in which the government defied the district court—twice—with no consequence.
Retired 42-year lawyer here. Perhaps Prof. Vladeck can offer an explanation (to the extent there is one) WHY the Supreme Court is deciding these stay questions the way it is. For at least the last decade, maybe longer, I have fought the battle of the dinner table with my spouse over whether the Court is largely, maybe even purely, a political animal. I have maintained steadfastly that it isn't, that our legal system has at least a modicum of integrity. But I'm getting to the point where, barring some other explanation, I'll have to concede defeat.
Justices — indeed all appointed federal judges — are selected & confirmed by elected officials — the President and the Senate. So these are NECESSARILY POLITICAL appointments — and there is no rule prohibiting a President from getting assurances from any political appointee as to their political, legal, religious, racial or cultural opinions, preferences, or predispositions. The judge who indicates a lack of loyalty or respect for Trump is not going to be even considered.
Although “politically appointed,” the Justices are not necessarily politically motivated in all cases. While there were Justices who never lacked integrity or failed to uphold constitutional rights, there were others who upheld discrimination, repression, medical mistreatment, and denials of due process. There are good eggs and bad ones.
Generally you can read their opinions and evaluate their character by their reasoning and logic. … or absence thereof. But sometimes it’s shameful that some decisions — like this one — are handed down without the majority providing any analysis or explanation. It’s as if the Justices in the majority don’t respect us … or are afraid that their explanations will be seen as hollow. Or maybe they want to act “imperially”… above the fray … impervious to public accountability.
No novice myself, I'm well aware of everything you say. But good luck explaining it to an educated, well-informed, newspaper-reading citizen without a law degree. People fitting that description look at decisions like the one that prompted Prof. Vladeck's post today and find it impossible to distinguish between Donald Trump and the Court's majority. Is there a difference? It's getting hard to see one.
I completely agree with you. It is easy to see the political, cultural, and religious views of many of the Justices. And it’s difficult for me to respect some of them. The practical effect of this decision appears to be that “Trump gets what he wants.” Also, that “the end justifies the means.” After all, they were all “convicted criminals.” They could be serving time in US prisons, but Trump wants to send them to foreign hellholes. It’s just a matter of “placement” — like which prison to incarcerate them or if they get a window or not. Maybe the Court will eventually decide that “placement” of illegal immigrants who are criminal convicts is a mere administrative matter — and the only required “due process” might be applied AFTER they are removed out of the US and incarcerated in a foreign location. Of course, Trump will then argue that those deported to foreign countries are no longer within US jurisdiction and no longer protected by US law, such as due process. Trump is playing us for fools. So, he’s definitely playing judges for fools. I can easily see how well-educated citizens have concluded that some Supreme Court opinions ring hollow, strain credulity, and only serve to achieve results — not uphold principles of justice and fairness.
Just remember how loudly Trump barked and shouted in favor of the most generous and extensive due process for himself when he was a defendant in several different criminal cases, and remember how loudly, after he was convicted of 34 counts of crimes of deception and fraud, he barked and shouted that he had been grossly mistreated and denied dur process even though in fact he had received very likely the most generous due process that any criminal defendant had actually received in quite some time.
I strongly oppose the Trump administration's actions, but I don't think he received due process in the Stormy Daniels case. I'm a legal layman, but I don't see how it's fair for a person to be found guilty as long as each juror considers the defendant to be guilty of at least one of three different crimes. Hypothetically, one-third of the jurors might consider the defendant guilty of just one of each of the three crimes, with no overlap among the three groups, yet the defendant is still found guilty, even though if the three crimes were considered separately, the defendant would be found not guilty.
You may be a layman but you’ve hit one of the several legal nails on the head in that observation regarding the nature of the due process Trump received at trial. The case had all the obvious bells and whistles of a regular trial. A judge, a jury, prosecutors, defense counsel, even jury instructions. But top to bottom, beginning to end, it was a railroad job. The legal errors are throughout the case. There’s little chance in the case not being reversed outright in Trumps favor. And it’s going to drive partisan democrats and white elderly liberal females off a cliff.
I'm the above. Know enough to know a few things but no lawyer, here.
My question has always been the end game for the ROBERT'S COURT. Do they intend to be the ONLY court or high court in the US?
If they give this unfit Executive, and all of its counterparts, all the deference, not earned, except those in Article II, sec II, the Robert's Court either becomes its own form of authoritarian judiciary (which is an oxymoron of sorts) or it is gone.
Why Trump? LOVE the UET, misrepresent Fed 70, in my humble opinion, and use civil precedent and privilege for a subpoena, to a sitting POTUS, to grant a felon, 45 days after the jury made that decision, on 34 counts leading to election interference/influence, absolute immunity is perplexing to a layperson, at best.
Laughing during oral arguments was a clue.
Do the judges on lower courts stop doing their job to see where the HIGH ROBERT'S COURT lands or do they continue to make decisions, coming from appointees of both parties, and perhaps they, themselves, stand up to this court by asking for explanations on their decisions.
Every judge's time is valuable, is it not, and asking would be respecting the profession and their own role, as the SCOTUS seems bent to waste their time.
No question is ever stupid unless it isn't asked.
For a decision this big, with no explainer, however "normal" that no explainer may be, now is not NORMAL, and I wonder if the Robert's Court is aware of this fact. YET.
Alito, wrote, just to write, in their decision on Garcia, that he'd prefer the cases go through the normal process as they are the "court of last review, not first review". Would mojitos on Martha's lagoon patio underneath a Trump flag, while waiting out that "normal process", be okay with Alito?
I'd like to not be dealing with a partisan court, an immune felon as POTUS and much more.
I knew this court had non-aligning interests, but ones I could live with, on some level, until they start dismantling my liberties and the rule of law.
There is always Ginny Thomas and recusal of Thomas. There is always the WSJ Opinion section to somehow justify what can't be justified.
They are to be their own arbiters yet we are not to question them, correct? Why is no review request, or whatever it may be called, as it has been done, not been done for answers, explainers, etc on cases that have so much impact in this ABNORMAL ABYSS?
When Robert's wrote that acts of pure individual will, without authority, are not acts covered under the immunity, what might that mean?
Going after enemies, using national security, taking away constitutional rights, seems fitting, and can certainly be parsed out by common sense and his own statements that are often used against him.
Anyway, I chose to vent all this on your reply. My apologies.
I sued a sitting Circuit Court judge, who was in business with me before becoming a lawyer and then a judge, so I got familiar very quickly with the burdensome legal profession and its nuances of grandiose proportions and I can't imagine what this court is thinking even knowing a bit.
Does this court deserve not to be questioned, in a novel environment, for a review, on record of its immunity decision, and others?
Being a Federalist or a Scalia clerk isn't what either ACB or D. J. Sauer appears to have ever been. I don't think I could state, with clean hands or honesty that I was once a supermodel but then again, as the CHIEF JUSTICE, when asked what was his hardest decision ever made, in this position, his answer was all I needed.
Whether to put up security fencing after the overturning of Roe/Dobbs.
The legal profession has descended to the level of the jokes from the past. It's really a corrupt profession frankly.
faux originality- a manufactured veil of intellectual hs that convinced well-meaning attorneys to support the intellectually corrupt Leonard Leo and FedSoc.
Let alone the bribery of gifts extraordinary to reward conservative philosophical fealty. see one Alito and Thomas et al.
We can't of course paint all attorneys with the mental corruption. Yet so few are standing tall in these times.
I don't. But in my view, much of that loss of esteem is unfair, the result of public misunderstanding of our legal system and excessive focus on a couple of judges on a single court, the Supreme Court. I promise you, lawyers, trial judges, and even the vast majority of appellate judges are doing essentially what they've always done. And in no sense are they "corrupt."
Now, the Supreme Court has certainly issued some unpopular decisions recently -- Dobbs, Citizens United, and so on. But It's wrong for people to conclude from those decisions, decisions they disagree with, that "the legal system" or "the judiciary" are "corrupt" -- or even that the Supreme Court is. That sounds a lot like our current U.S. Attorney General, who pronounces the judiciary "deranged" because of decisions that have gone against the government. Judges are neither corrupt nor deranged because they issue decisions people disagree with.
I do believe the Supreme Court has done a lot of damage to itself and to the legal system as a whole through its cavalier attitude toward conflicts of interest. Ethics matter for other courts; they should matter for the Supreme Court, too.
Remember, though, that we're talking about two judges on a single court. Meanwhile, there are thousands of federal judges elsewhere who are, again, doing what they've always done, and they work damn hard at it. And that's not even considering the many thousands more state judges who are also doing what they've always done and working damn hard.
So no, I don't believe the "legal profession" is a "joke," that the "judiciary" (state or federal) is "corrupt," or even that as a member of the profession who happened not to be corrupt that I was an "exception." On the contrary, I'd say I was typical.
When I began following the Supreme Court (and federal judiciary, more generally) in earnest beginning about 15 years ago, I quickly became aware of why experts kept saying there was a need to dispel the "Olympian myth" of nine sages floating in black robes making dispassionate rulings. Ever since the Citizens United decision (actually, you can even go back to the Heller decision a few years before that), and especially since the rise of MAGA Trumpism, I think the simple answer to your question of "why" is simply because they can.
The Justices who have been harboring conservative grievances for years and decades see this as a unique time to push the law as hard to the right as they can get away with. Decisions like Dobbs, Bruen, and Bremerton all show this clearly, without even considering the gross abuse of unsigned, unexplained decisions on the "shadow" (emergency) docket. I understand and respect Prof. Vladeck's tempered approach to criticizing the Court, but I am also drawn to the arguments made by Prof. Leah Litman in her new book "Lawless", which help demonstrate just how 'captured' the current Court really is.
My main hope is that the way the Court and Trump Administration are so publicly and shamelessly behaving so badly will bring about a long-overdue reckoning by America about what it really stands for. Then, elections that bring about a true mandate with real change in composition across Congress and the judiciary will allow us to pass meaningful legislation to address these long-standing problems with our Democracy.
Two problems here. One is that the "values" of the justices have always played at least some role in the Court's decisions. That's undeniable. And it's why the current chief justice is wrong in saying that what the justices do consists merely of calling "balls and strikes." At the same time, there is a "balls and strikes" quality to what courts do. In fact, the closer you get to the trial court level, the more judges are simply calling balls and strikes. But it's always been a combination, something lawyers understand and I'm afraid most non-lawyers don't.
The other problem (the one you identify) is that some of the justices these days seem to have abandoned the "balls and strikes" aspect of the judicial exercise almost entirely, to the point where they appear to be ignoring settled law (without saying so) and merely indulging their personal predilections. And that, I'm afraid, is what's going on in these stay decisions where the irreparable harm element is simply ignored.
I agree with you about the unavoidable involvement of values, as judges/justices are human beings. And, about the trial (district) courts not being appreciated for their "balls and strikes" determinations with fact-finding and application of pertinent laws to those facts. I appreciate the remarks that Justice Jackson delivered at the recent First Circuit Judicial Conference (in Puerto Rico), defending the importance of their work and the need for them to remain independent.
But, as M A Schreck pointed out above, the nomination and confirmation process for Article III judges/justices inherently relies on political branches and processes. This, of course, can lead to gross abuses, probably the most blatant example being Republicans' refusal to allow President Obama to nominate a Supreme Court Justice candidate (Merrick Garland) because it was "too close" (e.g. over 9 months) to the 2016 election, but then they nominated (then confirmed) Amy Coney Barrett after Ruth Bader Ginsburg's passing just 35 days before the 2020 election.
These abuses have led to a Supreme Court that is composed of highly-biased, and arguably corrupt, justices whose decisions are rightfully seen as disregarding precedent and often veering from the rule of law in order to reach ideologically-preferred decisions. When it comes to dispassionate jurisprudence, I would gladly replace every single conservative justice on the current Court with conservative jurists like David Souter. The difference in jurisprudence between them is glaring.
I despise the evil DJ T and now I’m beginning to despise the evil Supreme Court!! What the hell is going on in the United States of America? I am so embarrassed to be a citizen of this country that I have been born in and lived in. We need to do something to stop this Ice crap as soon as possible! Somebody needs to take them to court that can hold things up until it reaches the Supreme Court and we can show them pictures of what’s going on! They’re not going after the criminals they’re going after anyone! They told lies like they always do! I despise them all! I feel sick to my stomach right now after seeing what happened to a father who was mowing or weed whacking outside a pancake house, those “ice” people are vile pieces of crap! That man son served four years in the USA military. This is just flat out effing wrong.
I’m not sure where I left a comment yesterday where I stated that I was Jewish. I am not Jewish, I did not complete the Mikvah, which would’ve allowed me to consider myself to be of the Jewish face. My husband was Jewish and our twin boys were being bar mitzvah, and I wanted to allow them to be considered Jewish as the mother, because of history, was required to be Jewish for the children to be Jewish. When I chose not to do the Mikvah, did it because I had long before did not really want to be of any “organized“ religion. I felt religions were what causes so many wars in this world. My late husband, that I knew since I was 15, understood where I was coming from. He knew I believed that “God”, wanted all people to just learn to care for each other all over the world. I still believe that and I will never change that belief!! So I apologize for stating that I was Jewish, I guess I can only say I’m a believer in the creator. Again, like I said, I don’t know where I had posted that comment, so I hope anybody reading Under these comments and had seen that, knew the truth about me. May all be blessed with food, with safety, with health and any other human necessity. Sincerely, Leslie.
I am heartbroken by this egregious decision for every human being who happens to be an immigrant and for their loved ones who will suffer so much as a result. The Supreme Court has yet again thoroughly disgraced itself and this country. I don't understand why justices who vote on any and all cases, including shadow docket cases, should not be required to sign the decisions and identify themselves. What despicable cowards. The American Bar Assn should look into this.
Steve, if you (or any reader) comes across a legal analysis that defends this "disastrous" (!) decision, please share it with us. Need to know whether this decision was meant to appease djt/maga, to further embrace the unitary executive theory, or something else. Also, what is the excuse for unsigned opinions? It leaves the impression that some members of the Court prefer secrecy. Not a good look.
One small (given what happens to the people involved) but of course significant aspects to today's nauseating immigration decision to a con law teacher is how other than confronting its immorality.it cruelty, there is really no constitutional law of consequence to discuss with students. We usually hear about an autocratic executive; we have nowan autocratic Court.
I know it’s possible that one of the conservative Justices dissented privately, but it’s really disheartening to see the liberal Justices stand alone against this.
I get swept up every now and then by the decisions that suggest Justice Barrett or certain others can be counted on for a measure of nuanced independence, especially in procedural considerations. But those hopes are consistently undermined by decisions like this. See also, Trump v. United States.
As I have long since given up on Republican "moderates" in Congress doing the right thing, I now must give up on the tiny bit of hope that I had that Roberts and Barrett would do the right thing. From their ivory tower, they are either unable to see the consequences of their actions or they simply don't care. The Trump Administration is joyfully sending people who are not criminals to places where it knows they may be tortured and the Supreme Court, ignoring the 14th Amendment, is just fine with that.
The Disgraced Roberts Court is now dismantling the United States judicial system as it signals the lawless Trump administration that they can proceed with actions that would have formally resulted in prison for the perpetrators.
The only 2?mistakes that George Floyd’s murderers made was failing to wear masks and failing to remove any identifying markers.
Update: "NEW: Judge Murphy says the 8 men in Djibouti on their way to South Sudan WILL GET THE DUE PROCESS he previously ordered, saying that his remedial order remains in effect despite the Supreme Court's unreasoned order lifting the stay on his class-wide injunction."
There can be no other explanation for their rulings. None. Heritage Foundation and these justices will be studied in the future as a court as welcoming the unitary executive, and making the odious Japanese citizens interred in WW2 look like disney world. Legislative branch - gone. Federal Dstrict orders, eff them. Trump and 5 Supremes rule the world.
Sorry to be pedantic, but it wasn't the Japanese citizens who were odious, but their internment. I know that's what you meant, but...I'm pedantic. (working on it with therapist)
Yesterday: "Give me your tired, your poor, / Your huddled masses yearning to breathe free."
Today: "Don't send me your tired, your poor, / Your huddled masses yearning to breathe free / Or else we'll ship them to a third world country to be tortured and killed."
The Shadow Docket never seems to disappoint, does it? We are now seeing the consequences of Leo Leonard and Mitch McConnell packing the court. So much for the rule of law . . .
Thank you for giving us the breakdown and your thoughts. Beyond disheartened. I'm beginning to feel like a majority of this SCOTUS is quite similar to Pinochet's court.
Retired 42-year lawyer here. Perhaps Prof. Vladeck can offer an explanation (to the extent there is one) WHY the Supreme Court is deciding these stay questions the way it is. For at least the last decade, maybe longer, I have fought the battle of the dinner table with my spouse over whether the Court is largely, maybe even purely, a political animal. I have maintained steadfastly that it isn't, that our legal system has at least a modicum of integrity. But I'm getting to the point where, barring some other explanation, I'll have to concede defeat.
Justices — indeed all appointed federal judges — are selected & confirmed by elected officials — the President and the Senate. So these are NECESSARILY POLITICAL appointments — and there is no rule prohibiting a President from getting assurances from any political appointee as to their political, legal, religious, racial or cultural opinions, preferences, or predispositions. The judge who indicates a lack of loyalty or respect for Trump is not going to be even considered.
Although “politically appointed,” the Justices are not necessarily politically motivated in all cases. While there were Justices who never lacked integrity or failed to uphold constitutional rights, there were others who upheld discrimination, repression, medical mistreatment, and denials of due process. There are good eggs and bad ones.
Generally you can read their opinions and evaluate their character by their reasoning and logic. … or absence thereof. But sometimes it’s shameful that some decisions — like this one — are handed down without the majority providing any analysis or explanation. It’s as if the Justices in the majority don’t respect us … or are afraid that their explanations will be seen as hollow. Or maybe they want to act “imperially”… above the fray … impervious to public accountability.
No novice myself, I'm well aware of everything you say. But good luck explaining it to an educated, well-informed, newspaper-reading citizen without a law degree. People fitting that description look at decisions like the one that prompted Prof. Vladeck's post today and find it impossible to distinguish between Donald Trump and the Court's majority. Is there a difference? It's getting hard to see one.
I completely agree with you. It is easy to see the political, cultural, and religious views of many of the Justices. And it’s difficult for me to respect some of them. The practical effect of this decision appears to be that “Trump gets what he wants.” Also, that “the end justifies the means.” After all, they were all “convicted criminals.” They could be serving time in US prisons, but Trump wants to send them to foreign hellholes. It’s just a matter of “placement” — like which prison to incarcerate them or if they get a window or not. Maybe the Court will eventually decide that “placement” of illegal immigrants who are criminal convicts is a mere administrative matter — and the only required “due process” might be applied AFTER they are removed out of the US and incarcerated in a foreign location. Of course, Trump will then argue that those deported to foreign countries are no longer within US jurisdiction and no longer protected by US law, such as due process. Trump is playing us for fools. So, he’s definitely playing judges for fools. I can easily see how well-educated citizens have concluded that some Supreme Court opinions ring hollow, strain credulity, and only serve to achieve results — not uphold principles of justice and fairness.
Just remember how loudly Trump barked and shouted in favor of the most generous and extensive due process for himself when he was a defendant in several different criminal cases, and remember how loudly, after he was convicted of 34 counts of crimes of deception and fraud, he barked and shouted that he had been grossly mistreated and denied dur process even though in fact he had received very likely the most generous due process that any criminal defendant had actually received in quite some time.
I strongly oppose the Trump administration's actions, but I don't think he received due process in the Stormy Daniels case. I'm a legal layman, but I don't see how it's fair for a person to be found guilty as long as each juror considers the defendant to be guilty of at least one of three different crimes. Hypothetically, one-third of the jurors might consider the defendant guilty of just one of each of the three crimes, with no overlap among the three groups, yet the defendant is still found guilty, even though if the three crimes were considered separately, the defendant would be found not guilty.
You may be a layman but you’ve hit one of the several legal nails on the head in that observation regarding the nature of the due process Trump received at trial. The case had all the obvious bells and whistles of a regular trial. A judge, a jury, prosecutors, defense counsel, even jury instructions. But top to bottom, beginning to end, it was a railroad job. The legal errors are throughout the case. There’s little chance in the case not being reversed outright in Trumps favor. And it’s going to drive partisan democrats and white elderly liberal females off a cliff.
I'm the above. Know enough to know a few things but no lawyer, here.
My question has always been the end game for the ROBERT'S COURT. Do they intend to be the ONLY court or high court in the US?
If they give this unfit Executive, and all of its counterparts, all the deference, not earned, except those in Article II, sec II, the Robert's Court either becomes its own form of authoritarian judiciary (which is an oxymoron of sorts) or it is gone.
Why Trump? LOVE the UET, misrepresent Fed 70, in my humble opinion, and use civil precedent and privilege for a subpoena, to a sitting POTUS, to grant a felon, 45 days after the jury made that decision, on 34 counts leading to election interference/influence, absolute immunity is perplexing to a layperson, at best.
Laughing during oral arguments was a clue.
Do the judges on lower courts stop doing their job to see where the HIGH ROBERT'S COURT lands or do they continue to make decisions, coming from appointees of both parties, and perhaps they, themselves, stand up to this court by asking for explanations on their decisions.
Every judge's time is valuable, is it not, and asking would be respecting the profession and their own role, as the SCOTUS seems bent to waste their time.
No question is ever stupid unless it isn't asked.
For a decision this big, with no explainer, however "normal" that no explainer may be, now is not NORMAL, and I wonder if the Robert's Court is aware of this fact. YET.
Alito, wrote, just to write, in their decision on Garcia, that he'd prefer the cases go through the normal process as they are the "court of last review, not first review". Would mojitos on Martha's lagoon patio underneath a Trump flag, while waiting out that "normal process", be okay with Alito?
I'd like to not be dealing with a partisan court, an immune felon as POTUS and much more.
I knew this court had non-aligning interests, but ones I could live with, on some level, until they start dismantling my liberties and the rule of law.
There is always Ginny Thomas and recusal of Thomas. There is always the WSJ Opinion section to somehow justify what can't be justified.
They are to be their own arbiters yet we are not to question them, correct? Why is no review request, or whatever it may be called, as it has been done, not been done for answers, explainers, etc on cases that have so much impact in this ABNORMAL ABYSS?
When Robert's wrote that acts of pure individual will, without authority, are not acts covered under the immunity, what might that mean?
Going after enemies, using national security, taking away constitutional rights, seems fitting, and can certainly be parsed out by common sense and his own statements that are often used against him.
Anyway, I chose to vent all this on your reply. My apologies.
I sued a sitting Circuit Court judge, who was in business with me before becoming a lawyer and then a judge, so I got familiar very quickly with the burdensome legal profession and its nuances of grandiose proportions and I can't imagine what this court is thinking even knowing a bit.
Does this court deserve not to be questioned, in a novel environment, for a review, on record of its immunity decision, and others?
Being a Federalist or a Scalia clerk isn't what either ACB or D. J. Sauer appears to have ever been. I don't think I could state, with clean hands or honesty that I was once a supermodel but then again, as the CHIEF JUSTICE, when asked what was his hardest decision ever made, in this position, his answer was all I needed.
Whether to put up security fencing after the overturning of Roe/Dobbs.
Thank you for putting into words what my anger will not allow, presently.
Repeating my mantra, Every single country has the exact type of government that the people deserve to have.
The legal profession has descended to the level of the jokes from the past. It's really a corrupt profession frankly.
faux originality- a manufactured veil of intellectual hs that convinced well-meaning attorneys to support the intellectually corrupt Leonard Leo and FedSoc.
Let alone the bribery of gifts extraordinary to reward conservative philosophical fealty. see one Alito and Thomas et al.
We can't of course paint all attorneys with the mental corruption. Yet so few are standing tall in these times.
You will forgive me, I hope, if I'm unprepared to write off a career of more than four decades as no more than an exercise in "corruption."
Most certainly sir. I did say there were exceptions!
But do you think that your profession, the Courts, the Judge shoppers, the Supreme Court have the same esteem you gave it all 40 years ago?
I don't. But in my view, much of that loss of esteem is unfair, the result of public misunderstanding of our legal system and excessive focus on a couple of judges on a single court, the Supreme Court. I promise you, lawyers, trial judges, and even the vast majority of appellate judges are doing essentially what they've always done. And in no sense are they "corrupt."
Now, the Supreme Court has certainly issued some unpopular decisions recently -- Dobbs, Citizens United, and so on. But It's wrong for people to conclude from those decisions, decisions they disagree with, that "the legal system" or "the judiciary" are "corrupt" -- or even that the Supreme Court is. That sounds a lot like our current U.S. Attorney General, who pronounces the judiciary "deranged" because of decisions that have gone against the government. Judges are neither corrupt nor deranged because they issue decisions people disagree with.
I do believe the Supreme Court has done a lot of damage to itself and to the legal system as a whole through its cavalier attitude toward conflicts of interest. Ethics matter for other courts; they should matter for the Supreme Court, too.
Remember, though, that we're talking about two judges on a single court. Meanwhile, there are thousands of federal judges elsewhere who are, again, doing what they've always done, and they work damn hard at it. And that's not even considering the many thousands more state judges who are also doing what they've always done and working damn hard.
So no, I don't believe the "legal profession" is a "joke," that the "judiciary" (state or federal) is "corrupt," or even that as a member of the profession who happened not to be corrupt that I was an "exception." On the contrary, I'd say I was typical.
That's fair, while it's also true that a few have exercised IMHO, outsized and out of control influence. Leonard Leo. Don McGahn. Originalism.
Yes. Contract, Civil, Defense, Probate, Real Estate, Patents. Lot of fine people.
Political attorneys. sorry but waay to many have condoned and led harm to the system.
When I began following the Supreme Court (and federal judiciary, more generally) in earnest beginning about 15 years ago, I quickly became aware of why experts kept saying there was a need to dispel the "Olympian myth" of nine sages floating in black robes making dispassionate rulings. Ever since the Citizens United decision (actually, you can even go back to the Heller decision a few years before that), and especially since the rise of MAGA Trumpism, I think the simple answer to your question of "why" is simply because they can.
The Justices who have been harboring conservative grievances for years and decades see this as a unique time to push the law as hard to the right as they can get away with. Decisions like Dobbs, Bruen, and Bremerton all show this clearly, without even considering the gross abuse of unsigned, unexplained decisions on the "shadow" (emergency) docket. I understand and respect Prof. Vladeck's tempered approach to criticizing the Court, but I am also drawn to the arguments made by Prof. Leah Litman in her new book "Lawless", which help demonstrate just how 'captured' the current Court really is.
My main hope is that the way the Court and Trump Administration are so publicly and shamelessly behaving so badly will bring about a long-overdue reckoning by America about what it really stands for. Then, elections that bring about a true mandate with real change in composition across Congress and the judiciary will allow us to pass meaningful legislation to address these long-standing problems with our Democracy.
Two problems here. One is that the "values" of the justices have always played at least some role in the Court's decisions. That's undeniable. And it's why the current chief justice is wrong in saying that what the justices do consists merely of calling "balls and strikes." At the same time, there is a "balls and strikes" quality to what courts do. In fact, the closer you get to the trial court level, the more judges are simply calling balls and strikes. But it's always been a combination, something lawyers understand and I'm afraid most non-lawyers don't.
The other problem (the one you identify) is that some of the justices these days seem to have abandoned the "balls and strikes" aspect of the judicial exercise almost entirely, to the point where they appear to be ignoring settled law (without saying so) and merely indulging their personal predilections. And that, I'm afraid, is what's going on in these stay decisions where the irreparable harm element is simply ignored.
I agree with you about the unavoidable involvement of values, as judges/justices are human beings. And, about the trial (district) courts not being appreciated for their "balls and strikes" determinations with fact-finding and application of pertinent laws to those facts. I appreciate the remarks that Justice Jackson delivered at the recent First Circuit Judicial Conference (in Puerto Rico), defending the importance of their work and the need for them to remain independent.
But, as M A Schreck pointed out above, the nomination and confirmation process for Article III judges/justices inherently relies on political branches and processes. This, of course, can lead to gross abuses, probably the most blatant example being Republicans' refusal to allow President Obama to nominate a Supreme Court Justice candidate (Merrick Garland) because it was "too close" (e.g. over 9 months) to the 2016 election, but then they nominated (then confirmed) Amy Coney Barrett after Ruth Bader Ginsburg's passing just 35 days before the 2020 election.
These abuses have led to a Supreme Court that is composed of highly-biased, and arguably corrupt, justices whose decisions are rightfully seen as disregarding precedent and often veering from the rule of law in order to reach ideologically-preferred decisions. When it comes to dispassionate jurisprudence, I would gladly replace every single conservative justice on the current Court with conservative jurists like David Souter. The difference in jurisprudence between them is glaring.
Due process is gone
How do you think they’ll rule on the national injunction case?
OY
I am baffled. And beyond disheartened. And thoroughly ashamed of my current government leadership and this court.
Judge Luttig wrote, at around the time of the election, that he doubted SCOTUS would protect our democracy.
I despise the evil DJ T and now I’m beginning to despise the evil Supreme Court!! What the hell is going on in the United States of America? I am so embarrassed to be a citizen of this country that I have been born in and lived in. We need to do something to stop this Ice crap as soon as possible! Somebody needs to take them to court that can hold things up until it reaches the Supreme Court and we can show them pictures of what’s going on! They’re not going after the criminals they’re going after anyone! They told lies like they always do! I despise them all! I feel sick to my stomach right now after seeing what happened to a father who was mowing or weed whacking outside a pancake house, those “ice” people are vile pieces of crap! That man son served four years in the USA military. This is just flat out effing wrong.
I’m not sure where I left a comment yesterday where I stated that I was Jewish. I am not Jewish, I did not complete the Mikvah, which would’ve allowed me to consider myself to be of the Jewish face. My husband was Jewish and our twin boys were being bar mitzvah, and I wanted to allow them to be considered Jewish as the mother, because of history, was required to be Jewish for the children to be Jewish. When I chose not to do the Mikvah, did it because I had long before did not really want to be of any “organized“ religion. I felt religions were what causes so many wars in this world. My late husband, that I knew since I was 15, understood where I was coming from. He knew I believed that “God”, wanted all people to just learn to care for each other all over the world. I still believe that and I will never change that belief!! So I apologize for stating that I was Jewish, I guess I can only say I’m a believer in the creator. Again, like I said, I don’t know where I had posted that comment, so I hope anybody reading Under these comments and had seen that, knew the truth about me. May all be blessed with food, with safety, with health and any other human necessity. Sincerely, Leslie.
Consider myself of the Jewish faith
I am heartbroken by this egregious decision for every human being who happens to be an immigrant and for their loved ones who will suffer so much as a result. The Supreme Court has yet again thoroughly disgraced itself and this country. I don't understand why justices who vote on any and all cases, including shadow docket cases, should not be required to sign the decisions and identify themselves. What despicable cowards. The American Bar Assn should look into this.
Steve, if you (or any reader) comes across a legal analysis that defends this "disastrous" (!) decision, please share it with us. Need to know whether this decision was meant to appease djt/maga, to further embrace the unitary executive theory, or something else. Also, what is the excuse for unsigned opinions? It leaves the impression that some members of the Court prefer secrecy. Not a good look.
My thought exactly!
One small (given what happens to the people involved) but of course significant aspects to today's nauseating immigration decision to a con law teacher is how other than confronting its immorality.it cruelty, there is really no constitutional law of consequence to discuss with students. We usually hear about an autocratic executive; we have nowan autocratic Court.
I know it’s possible that one of the conservative Justices dissented privately, but it’s really disheartening to see the liberal Justices stand alone against this.
I get swept up every now and then by the decisions that suggest Justice Barrett or certain others can be counted on for a measure of nuanced independence, especially in procedural considerations. But those hopes are consistently undermined by decisions like this. See also, Trump v. United States.
WTAF?
Exactly the comment I was going to make.
As I have long since given up on Republican "moderates" in Congress doing the right thing, I now must give up on the tiny bit of hope that I had that Roberts and Barrett would do the right thing. From their ivory tower, they are either unable to see the consequences of their actions or they simply don't care. The Trump Administration is joyfully sending people who are not criminals to places where it knows they may be tortured and the Supreme Court, ignoring the 14th Amendment, is just fine with that.
The Disgraced Roberts Court is now dismantling the United States judicial system as it signals the lawless Trump administration that they can proceed with actions that would have formally resulted in prison for the perpetrators.
The only 2?mistakes that George Floyd’s murderers made was failing to wear masks and failing to remove any identifying markers.
Update: "NEW: Judge Murphy says the 8 men in Djibouti on their way to South Sudan WILL GET THE DUE PROCESS he previously ordered, saying that his remedial order remains in effect despite the Supreme Court's unreasoned order lifting the stay on his class-wide injunction."
SCOTUS is in on it. Project 2025, that is.
There can be no other explanation for their rulings. None. Heritage Foundation and these justices will be studied in the future as a court as welcoming the unitary executive, and making the odious Japanese citizens interred in WW2 look like disney world. Legislative branch - gone. Federal Dstrict orders, eff them. Trump and 5 Supremes rule the world.
These poor people.
Sorry to be pedantic, but it wasn't the Japanese citizens who were odious, but their internment. I know that's what you meant, but...I'm pedantic. (working on it with therapist)
Yesterday: "Give me your tired, your poor, / Your huddled masses yearning to breathe free."
Today: "Don't send me your tired, your poor, / Your huddled masses yearning to breathe free / Or else we'll ship them to a third world country to be tortured and killed."
The Shadow Docket never seems to disappoint, does it? We are now seeing the consequences of Leo Leonard and Mitch McConnell packing the court. So much for the rule of law . . .
Thank you for giving us the breakdown and your thoughts. Beyond disheartened. I'm beginning to feel like a majority of this SCOTUS is quite similar to Pinochet's court.