Yesterday, acting on an emergency appeal by the Trump administration, the Supreme Court vacated a pair of restraining orders issued by U.S. District Judge James Boasberg. This unsigned opinion in Trump v. J.G.G, in which the five Republican men on the court comprised the majority in the 5-4 decision, gave a green light (at least for now) to Trump’s invocation of the Alien Enemies Act of 1789 to permit continuing deportations of Venezuelans alleged to be members of the Tren de Aragua gang.
There’s lots of messiness surrounding the deportations, the presidential proclamation (announced after a day’s delay), the evidence for gang membership, the back and forth in courtrooms, and even challenges to the legitimacy of the judiciary to weigh in on the controversies. Leaving all that aside, I wish to highlight a couple of commentaries since the high court’s ruling.
Adam Liptak, in this morning’s New York Times, begins his commentary with these words (my emphasis added):
The court led by Chief Justice John G. Roberts Jr. over the last two decades has not been known for its modesty or caution. Its signature move has been bold assertions of power backed by sweeping claims about the meaning of the Constitution.
It gutted campaign finance laws and the Voting Rights Act, overturned the constitutional right to abortion, did away with affirmative action in higher education and adopted a new interpretation of the Second Amendment that protects an individual’s right to own guns.
But as the first wave of challenges to President Trump’s blitz of executive orders has reached the justices, a very different portrait of the court is emerging. It has issued a series of narrow and legalistic rulings that seem calculated to avoid the larger issues presented by a president rapidly working to expand power and reshape government.
Yesterday, in his newsletter Steve Vladeck began his commentary with these words:
As regular readers of this newsletter know, I tend to preach caution before folks read too much into what the Supreme Court does through its rulings on individual emergency applications—given that these rulings tend to be rushed, under-theorized, and, even when we actually get majority opinions, under-explained. Thus, I’ve always thought the real takeaways are to be had from the patterns of the Court’s decisions, not any one ruling.
But the more I read the Court’s Monday night ruling in Trump v. J.G.G., in which a 5-4 majority vacated a pair of temporary restraining orders entered by Chief Judge Boasberg in the Alien Enemy Act case, the more I think that this ruling really is a harbinger, and a profoundly alarming one, at that. To be clear, it’s not a sweeping win for the Trump administration; the Court did not suggest that what Trump is doing is legal, or, just as bad, that it might not be subject to judicial review. Indeed, the Court went out of its way to emphasize that individuals detained under the Act are entitled to due process, including meaningful judicial review.
But much like last Friday’s ruling in the Department of Education grants case, it’s still a ruling by a Court that seems willing to hide behind less-than-obvious legal artifices to make it harder for federal courts to actually restrain conduct by the current administration that everyone believes to be unlawful. As in that decision, here, a 5-4 majority has made it much harder for litigants to bring systemic challenges to what the Trump administration is doing. And especially in the broader context in which the Alien Enemy Act litigation, specifically, has unfolded, the justices in the majority got there by burying their heads in the sand.
The Roberts Court
I’ve been watching the Supreme Court — as an American citizen, not an attorney — for more than half a century. My understanding of the judiciary has been informed by the Constitution, the Federalist Papers, two undergraduate college courses in constitutional law, majority opinions and dissents of the court, and law review articles. I also follow legal and constitutional questions as reported in newspapers, journals, online commentaries, and books.
It doesn’t take a constitutional scholar to recognize that the Roberts Court is corruptly partisan to the core. The five men on the court have all served, in various roles, as operatives of the Republican Party. This defining characteristic is central to understanding how and why the court’s majority acts as it does.
On February 19, I wrote a post titled, “The courts will not stop Trump and Musk from trashing the federal government,” in which I predicted flatly that there was no way the Supreme Court would stop Musk’s rampage. I didn’t address arrests by masked agents, deportations to Salvadorian prisons, bad faith appeals to national security, or denial of due process. But I’m consistent: the Supreme Court will not protect us from this rampage either.
As I wrote then: “The Republican majority on the Supreme Court ran roughshod over the Constitution to grant presidents immunity from criminal prosecution for laws intended to apply to everyone. This court will not stop Trump from his campaign of destruction, which no Republican dares question publicly.” And: “It is preposterous to think that the Roberts Court, after giving Trump immunity from criminal prosecution — including for ordering the nation’s military to assassinate a political rival — would stand in the way of mass purges of civil servants and shuttering departments and agencies. That’s a nonstarter.”
In recent years, I’ve watched and read smarter people than I am, and certainly well-informed constitutional lawyers, make predictions about what the Roberts Court would do. In recent years, these predictions have been less and less reliable. By July 2024, with the immunity decision in Trump v. United States, the gap between expectation and outcome had become vast.
The subhead of Adam Liptak’s NYT piece reads: “In a series of narrow and technical rulings, the justices have seemed to take pains to avoid a showdown with a president who has challenged the judiciary’s legitimacy.” I predicted in my February post that Roberts would take pains not to stand in Trump’s way. I suggested that we might see “feeble roadblocks (which will invite workarounds) to Trump,” but no significant — Stop right there — challenges from the court to Trump. The Republican majority on this court is on board with Trump and, moreover, pragmatic enough not to stand in his way.
Professor Vladeck quotes from Justice Sonia Sotomayor’s dissent — “The Government’s conduct in this litigation poses an extraordinary threat to the rule of law. That a majority of this Court now rewards the Government for its behavior with discretionary equitable relief is indefensible. We, as a Nation and a court of law, should be better than this.” — before commenting:
That the Court is not, in fact, “better than this” may come as little surprise to folks who have come to view everything this Court does with cynicism. For as harsh a critic of the Court as I’ve been, especially with respect to its behavior on emergency applications like these, it still surprises me.
Habits, including intellectual and professional habits, die hard. The professor’s surprise is understandable. It is one thing to ascribe injudicious impulses to one or two justices (say, Thomas and Alito) on the court without deciding that the whole enterprise has become corrupted. But for a number of years (before Trump), in a range of cases, decisions have become increasingly results-driven. Partisanship has become a much better predictor of the outcome of cases before the court than original intent, or stare decisis, or any other conservative legal principle or practice.
As the Roberts Court’s majority has increased, the Republican-appointed justices have become bolder, less restrained in their decisions. And the partisan corruption of the court has become more extreme.
We’re in the midst of an authoritarian takeover of the United States. And the Republican majority on the Supreme Court, in a series of decisions predating Trump’s ride down the golden escalator, has deliberately paved the way. Look again at the list of sweeping rulings by the court in Litptak’s second paragraph. I regard the campaign finance, voting rights, and gerrymandering decisions, aimed squarely at disadvantaging the Democratic Party and its constituents in campaigns and elections, as especially noxious. Much else has happened along the way. And by July 2024, we arrive at the immunity decision.
This perspective is not cynicism; this is just the way things are. All three branches of the federal government are controlled by an authoritarian political party. Our liberties, checks on presidential power, the rule of law — all of this stands in the balance. It’s past time for an unflinching look. The Roberts Court will continue to pave the way for Donald Trump.
[Note: the final paragraphs were revised for clarity on April 9.]