On Monday, the Republicans on the Supreme Court issued an unsigned, unexplained order permitting the Trump administration to ship noncitizens to countries where they have never been and where they may reasonably fear for their lives, without providing them notice or the opportunity to contest their removal as required by both the U.S. Constitution and the UN Convention Against Torture.
Lower courts have repeatedly told the president he cannot simply disappear people. But the president has repeatedly failed to listen. And Department of Homeland Security v. D.V.D is the Supreme Court’s way of telling the president that he doesn’t have to.
DHS v. D.V.D. is one of many cases arising from the Trump administration’s implementation of its mass deportation agenda, which has been shrouded in secrecy, chaos, and the ever-present threat of violence. Here, the plaintiffs are noncitizens with final removal orders that, first, resulted from hearings they actually knew about and participated in, and second, specified the country to which they would be removed—usually their birth country or another country where they have lawful residency. But they sued the federal government after Trump’s DHS started putting them on buses and planes to random countries without warning and without telling them where they were going, or giving them a chance to prove they would not be safe if sent there.
In lower courts, the plaintiffs won various forms of interim relief, earning an injunction that prevented the administration from shipping them off while litigation was still ongoing. Or at least, that’s what they thought the injunction did, because the district court in this case soon found that the administration violated that order by continuing to fly people off to other countries, including South Sudan—a war zone where none of them are from, and where the U.S. government is actively advising people not to travel due to “crime, kidnapping, and armed conflict.”
It is that preliminary injunction—the one the government already violated—that the government requested the Court lift in D.V.D. And the Court granted the government’s request. Why? Because fuck you, that’s why. If the conservative justices had any reasons for overriding the lower court, other than complete disregard for both law and life, they did not care to share them in the order.
Writing for the liberals in dissent, Justice Sonia Sotomayor called the Court’s abuse of its discretion “as incomprehensible as it is inexcusable.” The Trump administration obviously did not need the Court’s permission to violate the lower court’s orders, as it was already doing so. But the Court still effectively rewarded the administration for its lawlessness.
This is becoming a pattern. In Trump v. JGG, the Trump administration ignored a lower court order that temporarily prevented it from removing Venezuelan migrants to an infamous Salvadoran prison—and then the Supreme Court stepped in and lifted the order. In Noem v. Abrego Garcia, the Trump administration ignored a lower court order directing it to retrieve Kilmar Abrego Garcia from that same prison—and then the Supreme Court stepped in, instructing the lower court to “clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” Time and time again, a district court judge orders the Trump administration to follow the law, the administration asks the Court to let it keep breaking the law, and the Court grants the administration’s request.
The Court’s order in DHS v. D.V.D., like the orders in similar cases, reflect its breathtaking disregard for the people whose rights Trump is violating, the lower court judges trying to protect those rights, and the concept of rights itself. This presents a question. If the Supreme Court does not care what the law says or what the judges applying the law to the facts on the ground say, why should those judges care what the Court says? By abandoning any semblance of respect for the rule of law—and the appearance of appreciation for the life-threatening consequences of that abandonment—the Court jettisoned its credibility as well. And lower courts would be justified in acting accordingly, and reading the Court’s opinions as creatively as the Court reads the Constitution.
The district court judge in DHS v. D.V.D., Brian Murphy, took a small step in this direction last night, declaring that his order requiring the Trump administration to remedy its violation of the preliminary injunction “remains in full force and effect, notwithstanding” the Court’s stay. The Trump administration is outraged, and on Tuesday, it asked the Supreme Court to clarify its order to address “the district court’s unprecedented defiance of this Court’s authority.”
For what it’s worth, Murphy is only following some of the unrebutted reasoning in Sotomayor’s dissent, which noted that the remedial orders were “not properly before this Court,” since the government didn’t actually appeal them or seek a stay pending appeal. If the majority disagreed, it could have said so. But, again, the conservative supermajority has given lower courts no reason to listen.
