Bonus 161: Why the Court Needs to Explain Itself

The continuing fallout from Monday afternoon’s ruling in the third-country removals case is an object lesson for why the justices should be providing explanations when they grant emergency relief.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of the weekly bonus issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit.

We expect another (big) tranche of (big) rulings in cases argued earlier this term starting at 10 ET today. But I wanted to use the bonus issue to cover the just-as-important fallout from Monday afternoon’s ruling in DHS v. D.V.D. (the third-country removals case), where the Trump administration has formally sought “clarification” from the justices as to what, exactly, Monday’s ruling meant—and, specifically, whether it also put on hold other relief that the district court had provided that Monday’s unexplained order didn’t specifically mention. The district court concluded otherwise—in a ruling that the Solicitor General has characterized as an “open act of defiance” of the justices. As I explain below, that charge is not just the epitome of chutzpah (given that the government itself has defied at least two of the district court’s rulings in this case), but it’s also grossly unfair. Whether the better reading of the Court’s Monday order supports the government’s view or that of the plaintiffs (more on this below), the answer certainly isn’t so obvious as to warrant such putative outrage.

The more important point is that this dispute has happened only because the six (or five)¹ justices who voted to stay some of Judge Murphy’s earlier rulings didn’t explain themselves. In that respect, the contretemps in D.V.D. can be directly traced to one of my biggest criticisms of the shadow docket—the justices’ regular refusal, even when granting emergency relief, to explain why they’ve done so. Alas, I’ve been beating this drum for years. But it’s hard to think of a more pointed or compelling example of what can happen when the Court doesn’t write.

First, without an explanation, parties (and lower-court judges) are often left to speculate as to what the justices actually meant. That ambiguity and/or uncertainty is problematic enough in any case, but especially in cases in which the dispute implicates governmental policies potentially affecting millions of people. The Supreme Court is not a trial court; it is, by both constitutional design and historical tradition, a court the rulings of which have impacts far beyond the specific parties. Given that reality, the Court ought to understand what can go wrong when it fails to provide even a modicum of explanation for its interventions.

Second, and more fundamentally, principled explanations for the Court’s decisionmaking are the primary thing that separates exercises of judicial power from exercises of raw political power. As I wrote shortly after it came down, Monday’s ruling was problematic (and controversial) enough in its own right. But by declining to explain exactly what they were ruling (or why), or how Monday’s ruling can be squared with the Court’s three previous interventions in Alien Enemies Act cases, the justices in the majority did nothing to obviate charges that the ruling was motivated by policy preferences rather than legal principles.

The reality is that the Court can’t write in all, or even most, cases. But the fallout from Monday’s ruling in D.V.D. should settle beyond peradventure the importance of the Court providing even a brief rationale whenever it grants emergency relief—and not just, as Justice Kavanaugh suggested last April, when the Court feels like it.

For those who are not paid subscribers, we’ll be back Monday (if not before) with our regular coverage of the Court. For those who are, please read on.