This Is the Worst Supreme Court Decision of Trump's Second Term
On Monday, the Supreme Court lifted an injunction that had protected immigrants from removal to dangerous countries where they could face torture and death. The Trump administration argues that it can expel immigrants to “third countries”—places where they have never stepped foot—without any semblance of due process so long as they've been deemed “deportable” by an immigration judge. The government specifically seeks to banish them to unstable countries in the throes of violence , including South Sudan and Libya.
US District Judge Brian Murphy, a Biden appointee, prohibited the government from carrying out this scheme without providing immigrants with basic due process rights: Murphy ordered officials to tell immigrants where they would be deported, and to let them object on the grounds that they would face torture there. SCOTUS has now stripped away those protections, allowing the government to expel immigrants without notice or a hearing. The court took this dramatic step not in a written opinion, but through an unsigned order on its emergency docket. In so doing, the court effectively nullified the Convention Against Torture, which the Senate ratified in 1994, as well as multiple federal laws implementing the treaty's guarantees. The justices' intervention in the case, DHS v. DVD , also sends a profoundly disturbing signal to the Trump administration that it will face no penalty for brazenly blurting lower courts' commands.
On a special Opinionpalooza pop-up episode of Amicus for Slate Plus members, Dahlia Lithwick and Mark Joseph Stern discussed the court's alarming order and its implications for Trump's continuing consolidation of unprecedented power. A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: The Supreme Court issued this order because the Trump administration claimed there was an emergency that had to be resolved right now . And since this is the shadow docket, it was resolved based on squishy factors like “equity”—who's going to suffer the most harm, and what relief do they deserve? The court keeps tilting these factors in favor of the Trump administration. And it did so yet again here.
But as Justice Sonia Sotomayor says in her dissent, the Trump administration has twice violated the lower court's orders in this case. He deported four noncitizens to Guantanamo, then El Salvador, in direct violation of Judge Brian Murphy's temporary restraining order. Then the government flew six migrants to South Sudan in violation of another injunction. Why is that important as a matter of law?
Mark Joseph Stern: It's critically important, because when the court crafts emergency relief, it's drawing on its power of “equity” to issue a fair remedy. And one of the fundamental rules of equity, as Sotomayor explains, is that you have to seek it with clean hands. If you come to a court with unclean hands, you forfeit your right to claim this kind of emergency relief. You don't get to jump the line. That is a fundamental principle of American law; one that the Supreme Court has long practiced.
And yet, here, the court just disregarded it. The Trump administration repeatedly violated Judge Murphy's orders; it had the most unclean hands you could imagine. It surely should have forfeited its right to get this kind of sweeping emergency relief, but the court granted it anyway. That's why Sotomayor writes that she “cannot join so gross an abuse of the Court's equitable discretion.” She is furious that the court has nullified the Convention Against Torture and stripped away due process protections —and that it has radically overhauled the law to allow a party with unclean hands to secure extraordinary and premature relief.
Right. What Sotomayor is flagging here isn't just that the Trump administration created a mess then asked the Supreme Court to resolve it. She's also concerned that the Supreme Court has undermined the district court judge who was doing just that—trying to solve the mess created by the Trump administration. Her colleagues just kneecapped Judge Murphy.
They threw Judge Murphy under the bus, much like they did with Judge James Boasberg in the Alien Enemies Act case. As Sotomayor writes: “This is not the first time the Court closes its eyes to noncompliance, nor, I fear, will it be the last. Yet each time this Court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law.” And, of the government's complaints about Judge Murphy, she observes: “Given its conduct in these proceedings, the government's posture resembles that of the arsonist who calls 911 to report firefighters for violating a local noise ordinance.”
We've talked a lot about the limits of judges' contempt powers: They can issue fines; they can even try to arrest and prosecute officials who defy them. But at the end of the day, the Department of Justice has massive discretion to thwart those punishments. And so we were left with the possibility that the Supreme Court might be the one to punish the Trump administration for flouting lower court orders by, at a bare minimum, refusing to grant it emergency relief. That would have been entirely in line with the court's rules of equity. It would have been especially appropriate in a shadow docket cases where the court weighs a bunch of squishy factors that should tilt against the government when it breaks the law and flouts court orders. This case could have been an opportunity for the Supreme Court to draw the line and say: Your hands are not clean. We will not help you.
Instead, the Supreme Court did the opposite—it gave the government everything it wanted.
That's why, to my mind, this is the worst decision from the Supreme Court of Trump's second term so far. Not just in thousands of terms of impact—although subjecting of immigrants to torture in foreign countries is ghastly. But also in terms of what signal it sends to the lower courts and the executive branch. The court has indicated that Trump and his allies can flout the law, make a huge mess, run up to the Supreme Court demanding relief when they're restrained by a judge, and win that relief no matter how egregiously they misbehaved. What incentive remains for this administration to comply with lower court orders at all? I don't see one.
In Trump's first term, Chief Justice John Roberts' signature move was to tell the president and his administration: Lie better next time, you're making us look bad. We are a million galaxies from that now, right? Now we have the Trump administration blurring the law, blurring the lower courts, and still winning at SCOTUS. This is a difference of epic proportions. We have moved on from “lie better” to: Go ahead and ignore a judicial order. We don't care. And we're not even going to explain why we don't.
There's no other way to interpret Monday's order. It is, as you say, epically worse than the smoke signals the Supreme Court sent during Trump's first term, which urged Trump to make his lies more believable. Now the majority has signaled to Trump: You can totally flout restraining orders and injunctions. We won't hold it against you one bit . His administration faces zero consequences at SCOTUS for violating court orders. This is permission to the government to keep blurring lower court rulings. It is the darkest signal that the Supreme Court could have sent at this moment, when courts are so frequently the last line of defense protecting democracy and civil liberties from Trump.
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