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On Monday night, the Supreme Court issued a 5–4 decision lifting Judge James Boasberg’s temporary restraining order against the mass deportation of Venezuelan migrants under the Alien Enemies Act of 1798. The majority held that the migrants had filed the wrong kind of lawsuit in the wrong court, ordering them to file narrower claims—called habeas petitions—in Texas, where they’re detained. The opinion also glancingly affirmed the migrants’ right to due process, while making it significantly harder for them to vindicate that right in court.
In a special Tuesday episode of Amicus for Slate Plus, Dahlia Lithwick and Mark Joseph Stern discussed the court’s shadow docket ruling and its bleak implications for the Supreme Court’s broader response to Donald Trump’s lawlessness. A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: There are a couple of fascinating things about Monday’s order. One is that it came down as an unsigned “per curiam” opinion on the shadow docket. So we don’t know who wrote it. Another is that it’s boys versus girls, with Justice Amy Coney Barrett joining the liberals in dissent. But Barrett didn’t agree with everything Justice Sonia Sotomayor wrote in her dissent. What exactly was she on board with?
Mark Joseph Stern: Justice Barrett did not sign on to Justice Sotomayor’s extraordinary rhetoric about the Trump administration’s violations of the rule of law. The one really substantive rebuttal that Barrett signed onto in full is the procedural aspect, where Sotomayor told the majority: Are you crazy? These are not habeas cases! Habeas petitions are a challenge to your detention by the government. But migrants aren’t asking to be released from detention—they’re asking to stay in detention here rather than get sent abroad! The majority made up this brand new rule that these cases must be filed as habeas petitions anyway.
Remember, Justice Barrett was a civil procedure professor at Notre Dame Law School for years. She is an expert in these topics. The fact that she signed onto this part of Sotomayor’s dissent is a very strong indication that the majority was indeed wrong on the law.
I think Barrett is worried about questions of the rule of law, but she was never going to sign off on Sotomayor’s soaring rhetoric here. Then there’s the very different issue of John Roberts. A few short weeks ago, we had John Roberts, the magisterial institutionalist who stuck his neck out for Judge Boasberg after Trump said he needed to be impeached. Did he just throw Boasberg under the bus?
I think Roberts completely threw Judge Boasberg under the bus. I mean, this was a shadow docket case, where there’s a bunch of fuzzy considerations that give the court a ton of latitude to consider extralegal questions: the balance of the equities, irreparable harm, whether the government has come to the court with clean hands. So even if Roberts agreed with the other men on this habeas issue, he could have said: You know what? In this compressed timeline and emergency posture, I don’t think the government has earned the right for this extraordinary intervention. And he could have denied the government’s request. He didn’t have to say a thing.
Instead, Roberts joined with the other male justices to make new law that cuts off the knees of Judge Boasberg’s orders over the past few weeks, and gives the Trump administration the sweet vindication that it had been looking for. It essentially tells the world: The Justice Department was right about this all along, and Boasberg was wrong. So yes, the optics of this decision are profoundly unfortunate. The Trump administration has behaved so contemptuously toward Judge Boasberg from the beginning. It almost certainly defied his first restraining order, telling the government to turn around planes carrying the migrants. Ever since, it has lobbed these outrageous insults at him in filings. And it has rejected his authority to probe its misconduct throughout this case.
If Roberts wanted to send a signal that the Justice Department has no right to treat judges this way, that it has to show respect for courts in the rule of law, this was the time to do it, this was the case. The chief justice could have sent a signal to these government officials who are dismissing the legitimacy of the federal judiciary that there will be consequences for their actions, that their treatment of the lower courts is unacceptable. And the chief didn’t do it. Instead, he abandoned Judge Boasberg and delivered him this very painful loss.
I’m envisioning a goldfish who has no memory, just swimming round and round a little castle in his bowl, discovering it anew every time. That’s us, right? We love to think about this court as an arbiter of justice, and maybe this is the day when John Roberts meets the moment. The same guy who has screwed us over in case after case, including the immunity decision that helped make Trump president again. I guess I’m curious why we keep acting surprised when a justice who has devoted his life to capacious theories of executive power, and who doesn’t really care much about checks and balances, behaves so contemptuously toward the district court in this case. And takes such an utterly blinkered view toward the pervasive history of the administration’s underhandedness through this litigation. Surprise: He did it again.
I’d love for you to unpack the fact that this happened on the shadow docket, at a high velocity with minimal briefing and no arguments. I guess the majority credited the government’s allegation that it would suffer irreparable harm if the court didn’t act, though it disregarded the irreparable harms of people who’ve been renditioned to an incredibly dangerous prison in El Salvador. I think it mattered to the dissenters that this happened out of plain sight, without even the transparency we saw in Korematsu.
The majority is exploiting the shadow docket to smuggle through a dirty decision with little basis in law. Again, I think that’s what irritated and alienated Justice Barrett: The habeas ruling does not make sense; it is not grounded in precedent. And in theory, the court is not supposed to make new law on the shadow docket—it is only supposed to intervene when a lower court clearly erred and a party has a clear right to immediate redress. That was simply not the case here. The majority just treated this like any other dispute on the merits docket, which is especially inappropriate when the government comes with unclean hands and has acted with contempt toward the courts at every single turn.
It is really clear that the amount of willful blindness in the majority opinion drives the dissenters round the bend. They cannot believe the degree to which the majority had to ignore the government’s wrongdoing and systematic abuse of every single tool in its arsenal to evade judicial review.
This is just the opposite of a case where the government has secured the extraordinary right to premature intervention. You mentioned Korematsu, the notorious decision upholding the internment of Japanese Americans during World War II. This is something Justice Ketanji Brown Jackson brought up in her separate dissent, writing: “At least when the court went off base in the past, it left a record so posterity could see how it went wrong. With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.”
My God, are those fighting words if I have ever seen them in a Supreme Court opinion. And my God, does that bode poorly for the other cases on the shadow docket. This is the kind of rhetoric that a justice does not whip out in dissent unless she is starting to feel that all hope is lost. I was disturbed to see it; I think it’s completely appropriate and spot-on. But the message seems to be, in both her and Sotomayor’s dissent, that the majority is biased toward the Trump administration. It’s racing to give the president unearned wins—and the problem is about to get worse.
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