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.
One of the most pernicious effects of the Court's rulings in this case (and others) is the role of its super-granular legalisms and lack of explanation in making the case opaque to the public. Writ large, the trump regime is using armed, masked agents with no official identification or warrants to (1) grab people off the streets and in their workplaces and (2) detain them indefinitely, regardless of citizenship status. It is arbitrarily renditioning detainees to third countries without due process, in defiance of court orders, and regardless of the potential danger to the renditioned individuals up to and including death.
Thank goodness Justices Sotomayor and Jackson persevere in exposing the Republican majority as the partisan hacks they are. Thank goodness the district courts continue to fight for the Constitution in the face of the Supreme Court's opposition.
It is past time for what remains of the independent legal community to call out plainly what the trump regime is doing: standing up a police state, with the aid and consent of a corrupt Supreme Court.
Steve Breyer persuasive argues that when interpreting the Constitution, one must take into consideration the consequences of a ruling. John Robert’s has publicly disagreed with Steve, but admits that if a ruling is “absurd,” then the ruling is not correct. John does not define “absurd.” When the import of an executive order or an action is blatantly unconstitutional, as in the birthright citizenship controversy, that “absurd” enough for me. Trump has “unclean hands”on almost everything.
“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.”’
If these defendants end up tortured or dead, the majority justices should be arrested and tried for accessory to murder.
They defied the defendants’ constitutional rights to due process when making their ruling for their cult leader.
The legal issues are appalling but the sheer inhumanity of it all bothers me even more. I wish there was a way to monitor and report on exactly what happens to those people being sent against their will to Sudan. Their lives matter. They are someone’s brother, father, son, friend. SCOTUS should be held responsible for knowingly and willingly causing them harm and or death as they had the chance to protect them and their legal rights but deliberately chose not to.
This won't help much, but Human Rights Watch, Amnesty International and a US based group Physicians for Human rights (specialists at border) are monitoring. I donate to them what little I can. I wish a country would refer America to the ICJ or ICC, regardless of whether we recognize them.
In this time and place I think that we can say that legalisms are not the answer to lawlessness. I know that this is different than your question, which is "is law the answer?" But when the President continually treats the law as completely irrelevant, can it ever be the answer? Probably not as to getting him to comply with the law. And for certain, legal formalities will not get the job done even if (dubious) the Court majority would go there.
This Court carefully selects among the array of curated emergency applications presented to it by the government and then seizes upon cases that it feels provide the opportunity to overrule long established precedent or statutory direction. In the process the Court seems to ignore normal order, full briefing, key injunctive relief factors, and factual development
The decisions themselves are brief and , as outcome determinative rulings, fail to fully define the rule(s) it pronounces, address the contours or even the practicability of the implementation of its decisions. The outcomes seem predictably to favor the government.
We have one justice cautioning, if not threatening, lower court judges to precisely follow the artificial and strained limitations on standing that he has has methodically imposed on unfavored interests over the past decades. In this case the federal district judge applied logic and reason to address an issue the Court in its hurry neglected to address; a predictable outcome dictated by the Court's hurried use of the shadow docket to achieve its idealogical goals and/or signal the future precedent breaking decisions it is planning.
I thought the jurisdiction issue was debatable. However, I'm an appellate lawyer, so I'm used to slicing the apple how I want to divide it and present it to my audience. I understand people disagree with me, but that is obviously the point of allowing for the appellate court to reach the merits of that argument. It seems v politically motivated decide it without briefing, arguments, or a decision. It seems especially abhorrent to stay the d.ct.'s injunctive relief when lives are at issue and then say the appellate court should then deal with the jurisdictional question.
The question Lincoln proposed in response to Ex Parte Merryman is the one that the disgraced Roberts Court has answered time and time again with a resounding yes. Every human right is sacrificed to hyper technical and even wholly invented readings of the law as our democracy is flayed on its way to destruction.
Im squarely on the side of the 2 dissenting justices. But there is another aspect that really really bothers me. Is there no room,for common decency sith the now permanent and corrupt majority of the court? These are individuals who are being sent to what is fairly described as a failed and lawless state - how could the 6 corrupt supremes rely on an abstraction to send them to what could be a very very grim fate.
Possibly hatred. Possibly if you send them there, the rest will leave voluntarily. This is real stuff they are preaching, a no-holds-barred attack on non-white's, whether it be in the US, or the world-AKA USAID!
The Trump administration has signaled its desire to put people, including U.S. citizens ("homegrowns"), beyond the reach of the U.S. justice system (e.g., in CECOT prison in El Salvador). In this situation, for the Court to say that such people need to wait for that very justice system to do its slow work is not just morally incoherent, it's logically incoherent.
So here's a somewhat different question: In a month or so, when the Trump administration begins deporting U.S.-born children of illegal immigrants (along with their parents), as I don't doubt it will, will the conservative Justices speak out publicly even if they won't or can't issue a legal ruling, or will they sit in silence while the issue works its way through the lower courts, leaving the deported children without any real hope of redress? They can't use the excuse that they never speak out on important national issues (1).
When the shoe was on the other foot, Alito and Thomas refused to accept as settled law any opinion for which they were on the losing side, continuing to file dissents until the court shifted and they became the majority on those points. This assymetry between the goody two shoes Ds and might make right Rs is a large let of how we got to where we are.
Not being within the legal profession, many of us lack the capacity to respond in such an insightful way as Mr. Vladeck. It is always a wonder and a challenge to read his reviews. However, the question of whether there does appear to be times, as Lincoln states, when "... all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?" I say yes, regardless of any vow taken, unless that "violation" was with intent to undermine rather than save our Nation.
The intellectual debate within this context was somehow lacking in the rulings of Judge Cannon, and I do not recall anyone standing for their oath in her case. There are many others to be cited as well, yet here we remain, at the doorstep of being evicted from our democracy, and we are quibbling over context. These apparently Justices are no more interested in adhering to a point of law than they would be in running for an official office. I think Kavanaugh expressed that position recently.
So, the real question from a non-legal mind appears to be, how to openly broadcast the lack of Judicial responsibility by the majority of the Court in a way that voters can understand? And, who would be capable of using that initiative to save our nation?
It is hard to imagine a more cruel and unusual punishment than deportation to a third country to which the person being deported has absolutely no ties or even a common language. That this is being done with no due process to persons whose only "crime" was to seek from this country refugee status from their country of origin, knowing that the third country at a minimum is too poor and dysfunctional to provide minimally humane treatment and that indefinite incarceration, torture and death more than likely awaits these individuals, is legally and morally outrageous.
Whether in the birthright citizenship cases or these these third-country deportation cases, you should call out the Court majority in no uncertain terms not only for hiding behind the shadow docket to avoid explaining themselves, and not only for misdirecting their purported concern about upholding the "rule of law" toward conscientious lower court judges providing a check through meaningful injunctions staying such apparently egregious unconstitutional actions while the cases get fully litigated, but for allowing the Administration to seek interlocutory relief irreparably harming the defendants without addressing the issue of underlying constitutionality. Surely the Court has it within its Article III powers the ability to reframe the questions presented to direct the government as petitioner to brief and argue the merits as a necessary part of its inquiry as to whether the preliminary relief granted by the lower court was warranted. Justices Sotomayor and Jackson deserve our thanks for their full-throated dissents to these shameful "dancing on the head of a pin" decisions.
One of the most pernicious effects of the Court's rulings in this case (and others) is the role of its super-granular legalisms and lack of explanation in making the case opaque to the public. Writ large, the trump regime is using armed, masked agents with no official identification or warrants to (1) grab people off the streets and in their workplaces and (2) detain them indefinitely, regardless of citizenship status. It is arbitrarily renditioning detainees to third countries without due process, in defiance of court orders, and regardless of the potential danger to the renditioned individuals up to and including death.
Thank goodness Justices Sotomayor and Jackson persevere in exposing the Republican majority as the partisan hacks they are. Thank goodness the district courts continue to fight for the Constitution in the face of the Supreme Court's opposition.
It is past time for what remains of the independent legal community to call out plainly what the trump regime is doing: standing up a police state, with the aid and consent of a corrupt Supreme Court.
Nancy, I really appreciate your response so clearly stated.
Steve Breyer persuasive argues that when interpreting the Constitution, one must take into consideration the consequences of a ruling. John Robert’s has publicly disagreed with Steve, but admits that if a ruling is “absurd,” then the ruling is not correct. John does not define “absurd.” When the import of an executive order or an action is blatantly unconstitutional, as in the birthright citizenship controversy, that “absurd” enough for me. Trump has “unclean hands”on almost everything.
Note: Judge Moss issues administrative stay stopping South Sudan deportations - https://www.lawdork.com/p/breaking-judge-issues-administrative
Update:
Now in the hands of the S.Ct apparently. Neither Judge Moss nor Judge Murphy wanted to touch it after this order warning of issuing a writ mandamus
Link to Kyle Cheney's live reporting after it was transferred to Judge Murphy
https://x.com/kyledcheney/status/1941258485116879151
“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.”’
If these defendants end up tortured or dead, the majority justices should be arrested and tried for accessory to murder.
They defied the defendants’ constitutional rights to due process when making their ruling for their cult leader.
Totally agree. Their actions should not be without consequences.
The legal issues are appalling but the sheer inhumanity of it all bothers me even more. I wish there was a way to monitor and report on exactly what happens to those people being sent against their will to Sudan. Their lives matter. They are someone’s brother, father, son, friend. SCOTUS should be held responsible for knowingly and willingly causing them harm and or death as they had the chance to protect them and their legal rights but deliberately chose not to.
This won't help much, but Human Rights Watch, Amnesty International and a US based group Physicians for Human rights (specialists at border) are monitoring. I donate to them what little I can. I wish a country would refer America to the ICJ or ICC, regardless of whether we recognize them.
In this time and place I think that we can say that legalisms are not the answer to lawlessness. I know that this is different than your question, which is "is law the answer?" But when the President continually treats the law as completely irrelevant, can it ever be the answer? Probably not as to getting him to comply with the law. And for certain, legal formalities will not get the job done even if (dubious) the Court majority would go there.
This Court carefully selects among the array of curated emergency applications presented to it by the government and then seizes upon cases that it feels provide the opportunity to overrule long established precedent or statutory direction. In the process the Court seems to ignore normal order, full briefing, key injunctive relief factors, and factual development
The decisions themselves are brief and , as outcome determinative rulings, fail to fully define the rule(s) it pronounces, address the contours or even the practicability of the implementation of its decisions. The outcomes seem predictably to favor the government.
We have one justice cautioning, if not threatening, lower court judges to precisely follow the artificial and strained limitations on standing that he has has methodically imposed on unfavored interests over the past decades. In this case the federal district judge applied logic and reason to address an issue the Court in its hurry neglected to address; a predictable outcome dictated by the Court's hurried use of the shadow docket to achieve its idealogical goals and/or signal the future precedent breaking decisions it is planning.
I thought the jurisdiction issue was debatable. However, I'm an appellate lawyer, so I'm used to slicing the apple how I want to divide it and present it to my audience. I understand people disagree with me, but that is obviously the point of allowing for the appellate court to reach the merits of that argument. It seems v politically motivated decide it without briefing, arguments, or a decision. It seems especially abhorrent to stay the d.ct.'s injunctive relief when lives are at issue and then say the appellate court should then deal with the jurisdictional question.
The question Lincoln proposed in response to Ex Parte Merryman is the one that the disgraced Roberts Court has answered time and time again with a resounding yes. Every human right is sacrificed to hyper technical and even wholly invented readings of the law as our democracy is flayed on its way to destruction.
Im squarely on the side of the 2 dissenting justices. But there is another aspect that really really bothers me. Is there no room,for common decency sith the now permanent and corrupt majority of the court? These are individuals who are being sent to what is fairly described as a failed and lawless state - how could the 6 corrupt supremes rely on an abstraction to send them to what could be a very very grim fate.
Possibly hatred. Possibly if you send them there, the rest will leave voluntarily. This is real stuff they are preaching, a no-holds-barred attack on non-white's, whether it be in the US, or the world-AKA USAID!
The Trump administration has signaled its desire to put people, including U.S. citizens ("homegrowns"), beyond the reach of the U.S. justice system (e.g., in CECOT prison in El Salvador). In this situation, for the Court to say that such people need to wait for that very justice system to do its slow work is not just morally incoherent, it's logically incoherent.
So here's a somewhat different question: In a month or so, when the Trump administration begins deporting U.S.-born children of illegal immigrants (along with their parents), as I don't doubt it will, will the conservative Justices speak out publicly even if they won't or can't issue a legal ruling, or will they sit in silence while the issue works its way through the lower courts, leaving the deported children without any real hope of redress? They can't use the excuse that they never speak out on important national issues (1).
[1] https://www.reuters.com/legal/government/us-supreme-courts-roberts-warns-dangerous-calls-disregard-court-rulings-2024-12-31/
I predict they will be silent.
Your analysis and observations are excellent. Subscribing to your substack is one of the best things online I have done.
So wish we hadn't elected someone with 34 felony convictions and who lies much more easily than he speaks the truth.
Sadly, our SC cannot call lie/truth … like umpires call balls & strikes.
• it's an invasion- lie
• We're at war- lie
• Emergency tariffs- lie
Three lies ... you're out❣️🇺🇸
When the shoe was on the other foot, Alito and Thomas refused to accept as settled law any opinion for which they were on the losing side, continuing to file dissents until the court shifted and they became the majority on those points. This assymetry between the goody two shoes Ds and might make right Rs is a large let of how we got to where we are.
Not being within the legal profession, many of us lack the capacity to respond in such an insightful way as Mr. Vladeck. It is always a wonder and a challenge to read his reviews. However, the question of whether there does appear to be times, as Lincoln states, when "... all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?" I say yes, regardless of any vow taken, unless that "violation" was with intent to undermine rather than save our Nation.
The intellectual debate within this context was somehow lacking in the rulings of Judge Cannon, and I do not recall anyone standing for their oath in her case. There are many others to be cited as well, yet here we remain, at the doorstep of being evicted from our democracy, and we are quibbling over context. These apparently Justices are no more interested in adhering to a point of law than they would be in running for an official office. I think Kavanaugh expressed that position recently.
So, the real question from a non-legal mind appears to be, how to openly broadcast the lack of Judicial responsibility by the majority of the Court in a way that voters can understand? And, who would be capable of using that initiative to save our nation?
It is hard to imagine a more cruel and unusual punishment than deportation to a third country to which the person being deported has absolutely no ties or even a common language. That this is being done with no due process to persons whose only "crime" was to seek from this country refugee status from their country of origin, knowing that the third country at a minimum is too poor and dysfunctional to provide minimally humane treatment and that indefinite incarceration, torture and death more than likely awaits these individuals, is legally and morally outrageous.
Whether in the birthright citizenship cases or these these third-country deportation cases, you should call out the Court majority in no uncertain terms not only for hiding behind the shadow docket to avoid explaining themselves, and not only for misdirecting their purported concern about upholding the "rule of law" toward conscientious lower court judges providing a check through meaningful injunctions staying such apparently egregious unconstitutional actions while the cases get fully litigated, but for allowing the Administration to seek interlocutory relief irreparably harming the defendants without addressing the issue of underlying constitutionality. Surely the Court has it within its Article III powers the ability to reframe the questions presented to direct the government as petitioner to brief and argue the merits as a necessary part of its inquiry as to whether the preliminary relief granted by the lower court was warranted. Justices Sotomayor and Jackson deserve our thanks for their full-throated dissents to these shameful "dancing on the head of a pin" decisions.