Once Burned, Twice Shy
The Supreme Court’s order looks even more extraordinary two days later.
I gave my initial thoughts about the very important Supreme Court order blocking the deportation of a group of migrants in Texas in conversation with Jen Rubin and Steve Vladeck Saturday morning, only a few hours after the order was issued.
Two days later, I think they hold up pretty well.
In this entry, I want to underscore a few important second-order points about the Supreme Court’s order that the flurry of Saturday coverage may not have hammered home.
There's always an element of Kremlinology to teasing out the details from the flat surface of court action or opinions. But combined with the context and profile of the issue, the order serves up some important information between the lines.
1.
First, there was clearly some kind of divide between Alito and Thomas on the one hand and the other seven justices on the other. The process for this sort of emergency application would be to refer it to the circuit justice (here, Alito) who would then pass it along to the Court, perhaps after granting a temporary administrative stay. That's how it works in late-night applications in capital punishment cases, for example. Indeed, the plaintiffs' lawyers expressly directed the emergency application to Alito.
Relatedly, an order in a case initially directed to a circuit justice would specify that fact; it would begin with something like “the motion to Justice Alito and by him referred to the Court.” The Court’s 1 AM Saturday order did not include that language—a gaping omission for Court watchers. The Court simply proceeded to lay down the 85 words or so that instructed the United States in the clearest possible terms not to remove any detainee and asserted the authority of all possible writs to do so.
Furthermore, the order indicated that Alito and Thomas would dissent, but it was issued before the dissent was attached—another highly unusual circumstance. And when it did arrive, the dissent was full of invective for the Court’s having proceeded so quickly.
The strongest interpretation most congruent with these facts is that Roberts and the other six justices leapfrogged over any administrative stay to grab immediate control of the case. Alito’s characteristically dyspeptic dissent includes a number of suggestions that the Court moved precipitously and, as he said expressly at the end of the dissent, failed to “follow established procedures.”
And that is so. I clerked at the Court for two different terms and have been involved in many cases since then, and I've never seen the Court act before waiting for a petition to be referred to them by the circuit justice. That includes death penalty cases when the hour of actual execution was nigh.
There is certainly an interesting story behind the Court’s bypass of Alito. The obvious supposition is that the points Alito was proffering—the arguments for delay that wound up in his dissent—were ones the Court wasn’t buying. But however that went down, the important point is the Court’s obvious refusal to provide the United States with even a short window during which no governing order was pending.
It seems clear to me that the Court took the lesson from Boasberg’s experience on March 15. That is, this Administration can't be trusted not to spirit more detainees to El Salvador if they have any room to try to do so.
Additionally, the Administration’s rampant trash talk about Boasberg only hurts their case in the eyes of the Supreme Court. The entire Court almost certainly respects Boasberg greatly, and whatever impact the public disparagement of Boasberg may have had for the base, it could only further persuade the Court of the Administration’s bad faith.
I think the Boasberg case left the High Court, as representatives of the federal judiciary, once burned and twice shy. And in fact, it turns out that the Administration was again trying to pull a fast one—deporting detainees from a district where a federal habeas corpus action is not pending.
Worse, the Court had ruled unanimously in its initial review in the Boasberg case that detainees can’t be deported without notice that affords a reasonable time to seek habeas relief. The Administration’s grudging, or really defiant, interpretation in the case before the Court was to pass out a form (a few paragraphs, in English only) to the detainees informing them they were dangerous and subject to deportation and providing no information about how to challenge the determination. That could only have increased concern that the Administration had another under-the-radar mass deportation mission in mind.
2.
Another very unusual feature of the Court’s order was the instruction to the solicitor general to file a response to the application “as soon as possible” after action by the Fifth Circuit. Far more common would be for them to set a specific time frame or date.
And notice that this arch-sensitivity to the passage of time was not necessary to keep the Administration from pulling a fast one. The Court already had directed the government, invoking its various powers, not to remove any members of the putative class.
The best account of the Court’s general haste in this case, it seems to me, is they are concerned not only about the Administration’s squirreliness, but at least a majority has also absorbed the lesson from Judge Xinis that “every day [Abrego-Garcia] is detained in CECOT is a day of irreparable harm.” We know, for example, that in the previous per curiam from the Boasberg case, Justice Sotomayor added a statement joined by Justices Kagan and Jackson, which included the criticism that “[i]nstead of hastening to correct its egregious error…[the government] dismissed it as an ‘oversight.’”
3.
I wrote last week about what struck me as an extraordinary opinion in the Abrego-Garcia case by Fourth Circuit Senior Judge J. Harvie Wilkinson. Wilkinson's opinion was remarkable for its speed (like that of the Supreme Court), its forceful rebuff of the Administration, its insistence on Abrego-Garcia’s due process rights, and its view of the case in fundamental terms through the prism of a showdown between the Judiciary and the Executive.
The point I want to add now is that when the current generation of conservative judges—like Gorsuch, Kavanaugh, and Barrett—was coming up, they understandably saw themselves and conservatives generally as marginalized in law schools and with a relative dearth of role models. There were, however, a few: Antonin Scalia, Michael Luttig (who also is all in on fighting the dangerous self-aggrandizement of the Administration, as I believe Scalia would be), and Wilkinson.
I wrote then of the possible impact of Wilkinson’s opinion: “Future accounts of this high-crisis moment that document the democracy’s demise—or its resurgence, as the case may be—will include the words that Wilkinson wrote yesterday. Considering everything—where we are as a democracy, the stakes of the Abrego-Garcia case in particular, the truculent posture of the Administration, Wilkinson’s place and reputation in the federal judiciary—the opinion is fairly magnificent.”
Wilkinson is a Reagan-appointed conservative icon known for deferring to the executive even more than his other conservative luminaries. I think the words—but even more the tone—of Wilkinson's extraordinary opinion may well have exerted influence over the younger conservatives on the Court, who are at least 20 years younger than Wilkinson.
4.
Finally, a word to our sponsors. That would be you, reading this. The coverage of the Saturday 1 AM Supreme Court order really brought home to me the value of the community of independent journalists that you are helping to build. The quickest, most knowledgeable, and most insightful coverage all came from this burgeoning group; if you ask me, it blew the other coverage out of the water.
I have in mind this time around entries from Steve Vladeck (who is the consistent gold standard on the Supreme Court), Charlie Sykes, Marc Elias, and the Contrarian. These Substacks are becoming what once Walter Cronkite and later CNN were: the place to go for solid, quick, independent information. And as with Talking Feds, it is your contributions alone that sustain them. So here’s hoping you will continue to rely on—and, to the extent you can, help to build with paid subscriptions—the emerging sources of reliable, clear-eyed coverage when too many other traditional outlets are tacking toward Trump.
Talk to you later.
Thank you for writing this follow up! Your insight on the Supreme Court is invaluable!
HIs comments are insightful and all true but i think what is left out of this, and I'm sure purposely left out as it's supposition, is that the Court is finally beginning to understand what they've done by granting Trump unlimited power. They are beginning to understand that, with that power, trump will effectively make them, the Supreme Court, redundant to the point where he will eventually just remove them altogether. This appears to be the first steps on their part to rein him in before he can reach that level.