Bonus 177: A Closer Look at Justice Kavanaugh's ICE Raids Opinion

Walking through the only opinion written in support of Monday's Supreme Court stay in the ICE roving arrests case helps to highlight *how* the Court may be stacking the deck in Trump-related cases.

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:

The Court has already made a lot of news this week, but Justice Kavanaugh’s concurring opinion in Monday’s otherwise-unexplained stay in the ICE roving patrols case (Noem v. Vasquez Perdomo) is a truly remarkable writing in any number of respects. And although I feel a little bad for devoting yet another issue of the newsletter specifically to Kavanaugh, he is, to his genuine credit, the only justice in the majority who seems interested in publicly defending the Court’s (or, at least, his) behavior in these cases. That is a good thing, and I’ve devoted plenty of (virtual) ink to why the other justices need to be writing. But it should follow that the writings ought to be at least somewhat persuasive. Whatever Justice Kavanaugh was trying to accomplish here, it’s hard to conclude anything other than that it fails.

Below the fold, I walk through Kavanaugh’s concurrence one argument at a time—in an effort to show exactly how he ends up in such a radically different place from both the district court and the unanimous court of appeals panel, albeit without making any effort to explain why those four judges were (all) wrong. Some of it is because of slipperiness with the facts; some of it is because of slipperiness with the relevant precedents. Some of it is because Kavanaugh seems to think things are true doctrinally that (in some cases, thanks to him), just aren’t. But what it all drives home is how much the justices in the majority in these cases seem to be twisting themselves—to say nothing of the facts and/or the law—into pretzels in order to rule for the Trump administration.

To be sure, there are far more overt ways in which the justices have shown disrespect toward lower courts in their recent spate of rulings on Trump-related emergency applications. But just because this one is more subtle doesn’t make it any less serious—or any more defensible.

For those who are not paid subscribers, we’ll be back (no later than) Monday with our regular coverage of the Supreme Court. For those who are, please read on.