164. Justice Kagan's D.V.D. Concurrence

Thursday's denouement in the third-country removals case was not surprising. But the split between Justice Kagan and Justices Sotomayor and Jackson highlights a deeper (and July 4-appropriate) debate.

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I wanted to put out a quick issue today, rather than wait for Monday, to briefly cover and reflect upon Thursday afternoon’s order by the Supreme Court in the third-country removals case (with the unhelpful caption of DHS v. D.V.D.—so named because the anonymous plaintiffs are proceeding pseudonymously)—in which the Court cleared the way for the Trump administration to complete its effort to remove eight specific migrants to South Sudan.¹

Specifically, it seems worth flagging three things: What the majority actually did yesterday (and why it matters); the significance of Justice Sotomayor’s incredibly stern dissent (which was joined by Justice Jackson); and the surprising and revealing concurring opinion filed by Justice Kagan—the first time in her 15 years on the Court in which she’s filed an opinion concurring in a grant of emergency relief.²

To jump to the punchline, although I’m not at all surprised by the outcome, the divide between the three Democratic appointees reflects, in profound ways, a deeper debate that I think a lot of us are having as we’re faced with mounting evidence of lawlessness by the executive: To what extent should responses to that lawlessness rigidly adhere to the legal proprieties—to meet lawlessness with the most unassailable legal responses—versus an approach in which every ambiguity is resolved against what the current administration is doing? Put another way, is the goal to deprive the administration of even the fig leaf of any legal support for what it’s doing, or is to highlight why the government should never receive the benefit of the doubt—even when other administrations probably would?

Of course, everyone is going to answer this question differently. But it’s especially interesting to see those differences playing out publicly between the three Democratic appointees. And as I suggest below, although I think there is more to commend Justice Kagan’s concurrence than what you’d gather from others’ reactions to Thursday’s ruling, I find the Sotomayor/Jackson worldview increasingly persuasive—and, persuasive or not, increasingly worth saying out loud.

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1. How We Got Here

On Monday, June 23, in an unexplained order, the Supreme Court stayed a preliminary injunction that Massachusetts district judge Brian Murphy had imposed on April 18—an injunction that required the government to provide migrants with notice and an opportunity to challenge their removal to a “third country” before that removal could be effectuated. That order met with a strident dissenting opinion from Justice Sotomayor, who was joined in full by Justices Kagan and Jackson.

The question that the Court addressed on Thursday was whether the June 23 order also had the effect of freezing a subsequent ruling by Judge Murphy—after the government had removed eight migrants in violation of his April 18 injunction (and while that injunction was still in force). For those eight migrants, specifically, Judge Murphy had ordered the government (on May 21) to provide them with the required notice and opportunity to contest their removal before they were transferred to South Sudan. On June 23, hours after the Supreme Court stayed the April 18 injunction, Judge Murphy reasserted that his May 21 ruling remained in force—and so those eight migrants were still entitled to notice and a credible-fear determination before they could be removed.

Bypassing the First Circuit, the government went straight to the Supreme Court, accusing Judge Murphy of “openly defying” the Court’s June 23 ruling; asking the Court to “clarify” that Murphy’s subsequent ruling was also stayed by the justices’ intervention (rather than seeking a separate stay of that ruling—which would have had to go to the First Circuit first); and asking the justices to reassign the case on remand to a different district judge. As I wrote in some detail on June 26, the entire episode reflected both a remarkable amount of chutzpah and hubris on the Trump administration’s part, all of which was caused by the Supreme Court majority’s refusal to explain its June 23 decision.

That brings us to yesterday afternoon. Formally, the Court “granted” the government’s motion to clarify its June 23 ruling, and held that “The May 21 remedial order cannot now be used to enforce an injunction that our stay rendered unenforceable.” Although the 654-word order is light on analysis,³ it rests almost entirely on the Court’s 1947 ruling in the United Mine Workers case, which observed (in dicta) that “The right to remedial relief falls with an injunction which events prove was erroneously issued and a fortiori when the injunction or restraining order was beyond the jurisdiction of the court.” In other words, insofar as Judge Murphy lacked jurisdiction to issue the April 18 injunction, remedial relief based upon a violation of that injunction “falls” with the injunction.⁴

Of course, the Court hadn’t held on June 23, and didn’t hold on Thursday, that Judge Murphy lacked jurisdiction to issue the April 18 injunction; all the Court did on June 23 was “stay” that injunction (not “reverse” it)—and without even adverting to a potential defect in the district court’s jurisdiction, let alone holding that one existed. Thus, the majority at least appeared to be placing more weight on United Mine Workers than it can bear—at least without being extended into a different context.

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2. The Sotomayor/Jackson Dissent

From a legal formalism perspective, this was the central response of Justice Sotomayor’s six-page dissent. As she explained, “‘Preliminary injunctions . . . do not conclusively resolve legal disputes,’ and neither do temporary stay orders. Accordingly, this Court’s stay certainly did not ‘prove’ that the District Court’s injunction was ‘erroneously issued.’” Nor was the actual result in United Mine Workers to the contrary. As Sotomayor noted, the broader takeaway from that ruling was the principle that “‘An injunction duly issuing out of a court of general jurisdiction . . . and served upon persons made parties therein . . . must be obeyed by them however erroneous the action of the court may be.’” Thus, if the government really wanted relief from the remedial order, it should have separately sought a stay from that decision—rather than trying to bootstrap it onto relief from the April 18 injunction.

But the focus of Justice Sotomayor’s dissent was mostly elsewhere—on the underlying due process question the case raises (picking up on the themes of her June 23 dissent); on the government’s (continuing) refusal to provide the notice and due process on which the entire Court had insisted in the J.G.G. ruling on April 7; and on the majority’s continuing willingness to bend procedural rules to grant emergency relief to the Trump administration. As she put it, “What the Government wants to do, concretely, is send the eight noncitizens it illegally removed from the United States from Djibouti to South Sudan, where they will be turned over to the local authorities without regard for the likelihood that they will face torture or death.”

And because the majority cleared the way for that result despite substantial procedural and substantive objections, she closed her dissent with two especially feisty paragraphs:

[I]f this Court wishes to permit the Government to flout the fundamental rights guaranteed by the Due Process Clause, it cannot avoid accountability for that lawlessness by tasking the lower courts with inventing a rationale. The Court’s continued refusal to justify its extraordinary decisions in this case, even as it faults lower courts for failing properly to divine their import, is indefensible.

“In a democracy, power implies responsibility. The greater the power that defies law the less tolerant can this Court be of defiance. As the Nation’s ultimate judicial tribunal, this Court, beyond any other organ of society, is the trustee of law and charged with the duty of securing obedience to it.” This Court continues to invert those principles. Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial. Respectfully, I dissent.

There’s quite a lot more to say about Justice Sotomayor’s dissent (alongside her original June 23 dissent). For now, the relevant point is how much it’s focused on the broader atmospherics of the dispute—and not just the technical legal question respecting the relationship between Judge Murphy’s April 18 injunction and the subsequent remedial order he entered after the government violated it. Because it wasn’t obvious that a stay of the April 18 order also stayed the subsequent remedial order, that was sufficient for Justice Sotomayor (and Justice Jackson) to deny the government’s “motion.”

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3. The Kagan Concurrence

Justice Kagan doesn’t like concurring opinions—and regularly (and publicly) bemoans their proliferation. Indeed, there have been two grants of emergency relief already this term in Trump-related cases in which she did not publicly join Justices Sotomayor and Jackson in dissenting—but also did not write separately to explain why. But unless I’ve somehow missed one, Thursday’s separate opinion was the first time Justice Kagan has ever written separately to concur in a grant of emergency relief. And although she doesn’t engage with Justice Sotomayor’s dissent, it seems undeniable that Justice Kagan felt impelled to explain why she wasn’t joining that opinion—especially since she had joined Justice Sotomayor’s dissent in the first ruling in the case in full.

Here’s her entire concurrence:

I voted to deny the Government’s previous stay application in this case, and I continue to believe that this Court should not have stayed the District Court’s April 18 order enjoining the Government from deporting non-citizens to third countries without notice or a meaningful opportunity to be heard. But a majority of this Court saw things differently, and I do not see how a district court can compel compliance with an order that this Court has stayed. Because continued enforcement of the District Court’s May 21, 2025 order would do just that, I vote to grant the Government’s motion for clarification.

Justice Kagan cited two cases in support of the second sentence—one of which was United Mine Workers. It seems to me, though, that there’s a world of difference between a district court order compelling compliance with an injunction before that injunction is stayed and one that is entered after the stay. It certainly makes logical sense that a district court can’t issue an order enforcing an injunction once it’s been stayed. But when the remedy is imposed while the injunction remains in force, again, it’s not clear that any prior case specifically provides that the remedy must fall—and there are powerful arguments for why it shouldn’t.

That said, there is more than nothing to Justice Kagan’s logical point—that forcing the government to provide notice and a credible fear process to the eight migrants at issue in this case would compel the government to provide the exact relief that the Supreme Court had previously stayed—at least with respect to those individuals. This, to me, is the heart of the analytical issue: Judge Murphy’s May 21 remedial order wasn’t any old remedy; it was a remedy requiring the government to provide the very thing that the underlying injunction had required—albeit in a different (geographical) context. Thus, because the remedial order in this case is uniquely intertwined with the underlying injunction, perhaps there’s a stronger argument for tying them together here than there would be in the abstract. I take this to be the gravamen of Justice Kagan’s concurrence—and it doesn’t strike me as obviously incorrect, even if, back to Justice Sotomayor’s dissent, it also doesn’t necessarily follow from United Mine Workers.

In other words, pace Justice Sotomayor, I think the majority is clearly wrong that United Mine Workers settles the issue, but I also think Justice Kagan is not clearly wrong that the logic of United Mine Workers might apply in this specific context because of the nature of the remedy the district court ordered. And it strikes me as a remarkably principled move by a justice to publicly split that difference—especially given how easy it would have been to either (1) join the Sotomayor dissent; or (2) say nothing either way.

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We thus have a clash between two different, principled approaches to judicial review in this context. The Sotomayor/Jackson dissent relies heavily on the broader context of this case to support the conclusion that the Court shouldn’t go out of its way to aid the government—especially after the Court didn’t explain its original intervention. Because United Mine Workers doesn’t require the result that the majority reaches, that is, and ought to be, the end of the matter—at least so far as Sotomayor and Jackson are concerned.

The Kagan concurrence takes the legal issue almost as an abstraction—whether a stay she voted against should be fairly read to encompass a separate ruling in the same case. It’s easy to see how justices with similar views of the merits of the government’s behavior in this case might nevertheless come out differently along these exact lines; whether and when a remedial order is or isn’t sufficiently tied to the underlying injunction is seldom going to be self-evident.

At a more basic level, this also seems to reflect a broader divide I’m increasingly seeing in various professional circles—about whether, amidst mounting evidence of lawless behavior by the executive branch, the right answer is to focus on the strongest legal objections, or whether it’s to throw the kitchen sink (including legal, political, and moral arguments) at the problem. Put another way, is law the answer? Or is law too often the problem?

Of course, judges have a unique responsibility to privilege the law in all of these contexts. But should a judge in these circumstances follow the law wherever it leads them, or should the need to preserve fundamental rights, the separation of powers, and perhaps even the rule of law itself put a thumb on the scale?

Part of why I wanted to write this post today is because I’m reminded, in many respects, of President Lincoln’s July 4, 1861 Message to Congress—and, specifically, his response to Chief Justice Taney, who had held in Ex parte Merryman that Lincoln’s unilateral suspension of habeas corpus at the outset of the Civil War (while Congress was out of session) was unlawful:

Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?

Ever the good lawyer, Lincoln continued by explaining why this question wasn’t fairly presented in Merryman. And, to be clear, it’s not fairly presented in D.V.D., either. But for as sympathetic as I am to Justice Kagan’s analytical framing of the issue, it seems like there is (increasing) value in opinions like Justice Sotomayor’s—for calling out not just the government’s deeply problematic behavior, but the extent to which a majority of the Court is going out of its way to enable it in contexts in which it doesn’t have to do so. Maybe there are circumstances in which the law requires the Court to behave that way. But Justice Kagan’s concurrence notwithstanding, I’m not persuaded that this was one of them. And even if it was, that would’ve been a point worth articulating by more than just a single justice, too.

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We’ll be back Monday with our regular coverage of the Court. If you enjoyed this installment and are not already a subscriber, I hope you’ll consider becoming one (and upgrading to a paid subscription if you already are):

Happy Fourth of July, all—and please stay safe out there.

1. If you’re scoring at home, this is my fourth post about the D.V.D. case—which I fear we may look back at as an inflection point. The background is here; my initial reaction to the Court’s June 23 ruling is here; and a deeper reflection on how the lack of an explanation in the June 23 ruling speaks to larger issues with how the justices are approaching emergency applications is here.

2. The only other concurrence Justice Kagan has filed respecting an emergency application was her opinion concurring in the denial of emergency relief in an Alabama death penalty case in 2021.

3. Picking up on a theme from yesterday’s bonus issue, Thursday’s ruling, which was not denominated an “opinion of the Court,” is longer than the 643-word “per curiam” majority opinion the Court filed on April 4 in Department of Education v. California.

4. The majority ducked the government’s request to have the case assigned to a different judge on remand (and declined to weigh in on whether Judge Murphy had “defied” the June 23 order): “‘Assuming as we do’ that the District Court will now conform its order to our previous stay and cease enforcing the April 18 injunction through the May 21 remedial order,” the Court wrote, “we have no occasion to reach the Government’s other requests for relief.”