In recent years, nothing good has happened when SCOTUS issues a shadow docket opinion. That changed early Saturday morning when the Court issued an order freezing deportations under the Alien Enemies Act of 1798. The order was issued by a 7-2 majority with the two MAGA justices dissenting. The Supremes usually only issue emergency late night orders when an execution is imminent.
I’ll let Slate’s Mark Joseph Stern explain the significance of this unusual order:
“There are three remarkable aspects of the court’s decision. First, it acted with startling speed—so quickly, in fact, that it published the order before Alito could finish writing his dissent; he was forced to note only that a “statement” would “follow.” It is a major breach of protocol for the Supreme Court to publish an order or opinion before a dissenting justice finishes writing their opinion, one that reflects the profound urgency of the situation. Relatedly, awkward phrasing in court’s order may imply that Alito—who first received the plaintiffs’ request—failed to refer it to the full court, as is custom, compelling the other justices to rip the case away from him. No matter what, exactly, happened behind the scenes, it’s clear that a majority would not let Alito hold up speedy action. It also acted before the U.S. Court of Appeals for the 5th Circuit had a chance to step in, and before the Department of Justice had an opportunity to respond to the plaintiffs. These highly abnormal moves also reveal a desire to act fast.
Second, it is plain as day that the Supreme Court simply did not trust the Trump administration’s claims that it would not deport migrants over the weekend without due process. If the court did believe these representations, it would not have acted in such a rapid and dramatic fashion; it could have waited for the lower courts to sort through the matter, confident no one would face irreparable harm in the meantime. The majority’s decision to wade in straightaway points to a skepticism that the Justice Department was telling the truth. It’s damning, too, that the majority did not even wait for DOJ to file a brief with the court before acting. The only plausible explanation for the court’s order is that a majority feared the government would whisk away the migrants to El Salvador if it did not intervene immediately. That fear is well-grounded, since we now have substantial evidence that the government lied to a federal judge last month to thwart a court order stopping deportation flights.”
That’s only two of Stern’s three points but they’re the most important ones. The second point shows that the justices know they can’t trust the Killer-B’s of the Trump DOJ: Bondi, Blanche, and Bove. I knew that MAGA DOJ lies in these cases would eventually catch up with them. It’s one thing to lie on Fox News, it’s another thing to lie in open court and on the record to a federal judge. Regardless of who appointed them, judges do not like being lied to.
I have my own trilogy of recent events that hastened this emergency order. First, the firing of the lawyer who told the truth in the Abrego Garcia case. Erez Reuveni violated the MAGA prime directive: Never admit error and when one occurs lie your way out of it.
Second, Judge Boasberg’s bringing down the hammer and ordering a criminal contempt inquiry into the misconduct of the MAGA DOJ. It’s been put on hold for now but it’s still important. The judge is on solid ground: He’s bending over backward to be fair to DOJ, he could have held them in civil contempt immediately.
I have civic contempt for the MAGA DOJ, especially Pam Bondi who has joined the Abrego Garcia propaganda campaign in an unseemly and mendacious manner. She’s the second woman from Florida to serve as Attorney General: Janet Reno was non-political and would be ashamed of her fellow Floridian if she were still alive.
Third, the scathing opinion in the Abrego Garcia case by Judge J. Harvie Wilkinson of the 4th Circuit Court of Appeals. Wilkinson is not just any judge. In 2005, there were three finalists for the two seats left open by the retirement of Justice O’Connor and the death of Chief Justice Rehnquist: Roberts, Alito, and Wilkinson. Unfortunately for the country, Sam the Sham got the nod instead of the Judge who wrote this last week:
“It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.
This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process.
<SNIP>
Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.”
Not only is Judge Wilkinson right on the facts and the law, he’s a helluva writer. This opinion is one of the best pieces of legal writing since Justice Robert Jackson departed this mortal coil.
A quick note about the Alien Enemies Act of 1798. Along with the Sedition Act of the same year, it was despised in its time. The Adams administration used it to target those who supported the French Revolution. If in effect in 1776, these pernicious laws could have led to the arrest of the signers of the Declaration Of Independence including John Adams. President Adams knew better but went along with the radicals in his own party. It was a major factor in his defeat in the 1800 presidential election.
Back to the 21st Century. I’m focusing on the big picture of the deportation cases. For the details, Joyce Vance has written a fine piece at Civil Discourse: Untangling The Deportation Cases. Even at her most scathing, Joyce is more civil than I am. I wanna kick the MAGA Killer-B’s up the ass over their despicable handling of the deportation cases.
After the fakakta immunity impunity decision, I’m no longer willing to predict Supreme Court outcomes BUT it appears that the Chief Justice is ready to fix some of the damage caused by that ruling. My fingers are crossed that we’ve reached a turning point instead of a point of no return in the fight to save our democracy from MAGA madness.
We are barreling towards a constitutional crisis. It remains unclear if the Trump regime will obey court orders but it’s time to call their bluff if that’s what it is. It’s past time to give due process its due.
We have some point counterpoint with the last word. It goes to David Lindley followed by The Smithereens: