John Roberts will save the judiciary if he has to burn it down
Appeasement never works. The chief justice is trying it anyway.
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If Chief Justice John Roberts thinks he’s protecting the legitimacy of the judiciary, he has a funny way of showing it.
Less than a month ago, he rebuked the Trump administration for attacking Judge James Boasberg, who blocked the deportation of migrants under the Alien Enemies Act (AEA).
“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose,” he scolded.
Then on Monday, the chief justice cut the legs out from under Judge Boasberg in an unsigned order (drafted in Roberts’s signature, affable style) gutting the AEA case. Worse, by heading off an impending confrontation between the Trump administration and the trial court, the Court implicitly blessed the president’s strategy of defiance.
Put simply, the Court once again told the Justice Department that it is fine to ignore a trial judge’s order, and even an appeals court order, because, when push comes to shove, SCOTUS will make Trump’s problems go away.
Rewarding the indefensible
On March 14, Trump secretly signed a proclamation invoking the Alien Enemies Act, a Revolutionary War-era statute that allows the president to deport members of an invading army.
Seeking to define reality by executive fiat, he declared that the street gang Tren de Aragua is coterminous with the Venezuelan government and that the US is under invasion by TdA. And so, by the transitive property, we are at war with the state of Venezuela and can summarily deport anyone the president declares to be a TdA “soldier.”
The proclamation only goes into effect when released. But in preparation, the government began snatching up people it claimed were in TdA, often based on something as innocuous as wearing a Chicago Bulls hat or having a “Jumpman” tattoo, and shipped them to Harlingen, Texas. With rumors swirling that the AEA invocation was impending, immigration activists raced into federal court in DC.
On March 15, three things happened almost simultaneously: First, the government officially released the proclamation. Second, Judge Boasberg issued a temporary restraining order blocking the deportation of migrants under the AEA. And third, the government loaded up three planes of men and shipped them to CECOT, a notoriously dangerous prison in El Salvador.
This open defiance of the court’s order led to contempt proceedings, with the government insisting that it could not possibly explain anything about how the planes wound up in the air because of the state secrets privilege — even as Secretary of State Marco Rubio reposted a tweet by Salvadoran President Nayib Bukele featuring a music video of the prisoners deplaning and being thrown into a dungeon .
Meanwhile the government appealed the case on the merits and got roundly slapped down by the DC Circuit in a 2-1 ruling which excoriated the administration for deporting human beings without any process at all based on the preposterous fiction that the country is under alien invasion. But the lone judge who sided with the administration was Judge Justin Walker, a Trump appointee who often tees up very silly arguments to allow the Supreme Court’s right-wingers to reach their preferred outcome.
And true to form, Walker delivered, with a dissent that tried to make sense of the government’s ham-fisted argument that, if the deportees were to be accorded any process at all, that had to come in the form of a petition for habeas corpus filed where the men were detained.
Sure, habeas claims are explicitly demands for release, and these plaintiffs are asking to be repatriated to US custody in America. But Walker massaged this by saying that the plaintiffs’ claims “sound in habeas” — despite sounding nothing like habeas — and thus must be dismissed in DC for lack of jurisdiction.
And that was good enough for the Supreme Court’s conservatives, minus Justice Barrett, who were only too happy to cover their tiny, four-page junk opinion with Walker’s reedy “sounds.”
“AEA detainees must receive notice after the date of this order that they are subject to removal under the Act,” they mewled, as if they were simply substituting one form of relief for another. “The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
In reality, the majority was making new law on the shadow docket without the benefit of any briefing at all. Indeed, temporary restraining orders are definitionally unappealable — or at least, they were until the Trump administration started constantly appealing them. So much for Chief Justice Roberts’s dedication to “the normal appellate review process.”
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Justice Sotomayor’s scathing dissent calls out the majority for waving away the import of its decision. The reality is that habeas petitions must meet a very high standard to succeed, even if a detainee has access to a lawyer and wherewithal to file one. That was certainly not the case here, where detainees were moved to Texas and only told hours before being loaded onto flights that they were being deported to a Salvadoran gulag.
And that is no accident. As Justice Sotomayor noted, “Far from acting ‘fairly’ as to the controversy in District Court, the Government has largely ignored its obligations to the rule of law.”
The Trump administration did everything it could to hustle those men out of the country without allowing them to challenge their deportation. And then they both deceived and defied Judge Boasberg — all while Trump and the White House called for his impeachment.
“That a majority of this Court now rewards the Government for its behavior with discretionary equitable relief is indefensible,” Justice Sotomayor wrote incredulously.
Jumping on grenades
The Supreme Court’s ruling gestures at due process for people caught in an inhumane deportation machine, while effectively removing the only convenient avenue for relief. It’s also a bright green light for the Trump administration to continue giving the middle finger to courts, safe in the knowledge that their pals at One First Street will bail them out.
Here, the government spirited these people to Texas with no ability to reach loved ones or lawyers to contest deportations and then defied a court order not to deport them. And once caught, attempted to hide its defiance of the court by invoking the state secrets privilege.
In fact, defiance of judicial orders has been the government’s position in virtually every case since Trump’s personal lawyers took over the Justice Department.
There’s Kilmar Albergo Garcia, the Maryland electrician who convinced an immigration judge in 2019 to issue an order that he should not be deported to El Salvador, where he faced danger of being murdered by the MS-13 gang. He was nonetheless deported to El Salvador on one of the flights at issue in the AEA case, in what the government concedes was an “error.”
When a Maryland judge ordered the government to get Garcia back by midnight on Monday, the Supreme Court swept in with an administrative stay, heading off the possibility that the administration would find itself in open defiance of a trial court’s order. As of this writing, the Supreme Court has not ruled whether the government has an obligation to get someone back after mistakenly casting him into a dangerous dungeon.
Then there’s Dr. Rasha Alawieh, who was deported to her native Lebanon despite an order from a judge in Boston barring it. The government submitted an affidavit saying the agents who hustled the doctor onto a plane didn’t know about the order.
There are the countless impoundment cases where the administration has simply ignored orders from federal judges to release funds allocated by Congress, mumbling nonsense about refusing to disburse the money for “other” reasons. And in every case where the appeals court refused to stay a deadline for compliance — that is, a date for the trial judge to hold the government in contempt if they refused to comply — the Supreme Court has intervened.
For instance, Judge Amir Ali in DC ordered the government to disburse $2 billion in foreign aid funds for services already rendered by midnight on February 26. The chief justice issued another administrative stay, meaning that the government was allowed to continue withholding the money, through March 5. After the deadline for compliance had passed, the three liberal justices (plus Roberts and Barrett) ended the stay while harrumphing that “the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.”
And when Judge Myong Joun in Massachusetts ordered the Department of Education to give states grant money for teacher training, a five-justice majority jumped in to ensure that the government didn’t have to comply.
In short, whenever there’s a danger that the Trump administration might face real consequences for defying a court order, the conservative majority leaps on the grenade to make sure it never happens.
Judicial appeasement
It’s possible that Chief Justice Roberts believes he is protecting the judiciary by forestalling the day when the Trump administration tells a federal judge “no.” Maybe he fears that the third branch won’t survive a head-on confrontation with a deranged demagogue and his millions of armed followers. Or it could be that he’s just weak.
Whatever the reason, this strategy of allowing the government to flout trial judges’ orders on the assumption that a higher court will bail him out is only making the problem worse. Just yesterday, Lawfare reported that the government is reaching out to government contractors to find out whether they are represented by the law firms targeted in Trump’s executive orders — something which has been explicitly prohibited by three federal judges.
Feeding this beast will not keep it quiet, and it certainly won’t protect the judiciary. As lawyer David Lurie wrote in these pages last week, “John Roberts created a monster. It's about to eat him.”
That’s it for today
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Thanks for reading.
I am getting worried that the courts are not going to save us (actually, I have long thought that they weren't up to the task, and since the Executive and DoJ hold all the enforcement powers, that the Judiciary was not really the savior.)
How long until they disappear one of the never Trump gadflies to El Salvador without due process?
I am shocked but not surprised.
John — balls and strikes — Roberts and the Federalist Society. Not a surprise.
Headline on the Federalist Society home page: On Day One, President Trump Took Meaningful Steps to Rein In Administrative Abuse, Protect Due Process, and Improve Government Transparency.