SCOTUS Watch

Extra: I enjoyed Charlie Brown's Christmas Miracle: The Inspiring, Untold Story of the Making of a Holiday Classic, which is chock-full of information. 

I rewatched the special a few weeks ago and enjoyed that too.

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There were no oral arguments or scheduled opinion days, but it was still a pretty busy week. 

I addressed a pro forma rejection of final death penalty appeals separately. 

The week started with a ho-hum Order List, which gave me a chance on my substack to provide an Explainer. I wish SCOTUS provided an FAQ. 

After posting, I checked online, and what do you know. There was a per curiam opinion dropped. 

Alien Enemies Act 

The Supreme Court split 5-4 (also by sex), with strong dissents by Sotomayor and Jackson (alone). Barrett joined parts of Sotomayor's dissent. The case involves the Alien Enemies Act.  

There is good and bad news. The majority acknowledged that the government had to provide notice and a chance to be heard before seizing people and sending them off to foreign hellholes. 

So why the passionate dissents? Steve Vladeck and others explain that the limited habeas protections do not meet the moment. The opinion was a gratuitous limitation on addressing the threat. Since so many people will have to sue in the Fifth Circuit, there is also a greater likelihood of conservative results.  

Sotomayor also provided details of what is happening over the bare, unsigned majority opinion, which complained about the "rhetoric" of the dissents. Barrett did not join much of this aspect of the opinion. Kavanaugh dropped an "I'm so reasonable" concurrence, tossing in some mansplaining. 

Jackson strongly called out the majority for using the "shadow of the emergency docket" in a "fly-by-night approach" that is "dangerous." The stakes:

The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning. 

Kilmar Abrego Garcia

Garcia fled El Salvador at age sixteen in 2011, illegally entering the country. While looking for work, he was arrested in 2019. A court protected him from being deported because of the risks. 

The Trump Administration illegally deported him and eventually admitted the error. They claimed, however, that they had no power to get him back. A federal judge told them to try. Roberts granted an administrative stay as time ticked by. 

A legalistic per curiam was handed down, providing a "he said/they said." Sotomayor, for the liberals, says more bluntly that there is no evidence he is guilty. They would not have intervened. 

Nonetheless, without dissent, it also noted that the district court's "order properly requires the Government to 'facilitate' Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador."

As the Supreme Court correctly recognized, it is the exclusive prerogative of the President to conduct foreign affairs. By directly noting the deference owed to the Executive Branch, this ruling once again illustrates that activist judges do not have the jurisdiction to seize control of the President’s authority to conduct foreign policy.

[Justice Department Statement]

As Steve Vladeck notes, the presumption of regularity is problematic. The Justice Department replied, which doesn't bode too well, though hopefully he will come back. What about other people wrongly sent?

And, we simply cannot trust this Administration. After all, for telling the truth to the judge that a mistake was made, the acting deputy director of the department’s immigration litigation division was suspended.

For instance, the district judge called a hearing on Friday. The Administration tried to delay. No. The hearing takes place, and the judge asks where he is and if something is being done to get him back. The official word was "info not available." 

Bullshit. At some f-ing point, these people have to be held legally in contempt. Judges being mad is not satisfying when people are rotting in foreign jails. 

More Trump Rulings 

Another per curiam paused a ruling that stopped firing some government workers. A parallel case is still active. The short opinion noted that the people did not have standing. Sotomayor dissented without comment. Jackson said there was no reason to intervene now. Kagan went along without comment. 

Chief Justice Roberts also supplied an "administrative stay" (a limited pause) blocking illegal firings of members of the Merit Systems Protection Board and National Labor Relations Board. Trump is trying to expand previous Roberts Court rulings.

The new solicitor general claims the lower courts are causing "chaos." This is gaslighting. Trump is doing so by going against long precedent to see how far he can go. And, he might win on this one. 

No wonder a long-term member of the Solicitor General's office (he mentored Alito and Kagan) is retiring. Many others are getting the hell out too. 

And More 

Mark Joseph Stern on Bluesky:

Kavanaugh [issued| an administrative stay freezing a 6th Circuit order directing Ohio to approve, for the ballot, an initiative that would end qualified immunity under state law. Officials blocked the initiative on highly questionable grounds that, per the 6th Circuit, violate free speech.

A new director of the Federal Judicial Center was announced. Does Thomas know about this?

"Center education programs include orientation and continuing education for judges on subjects including law and procedure, case management, and ethics."  

Coming Up

There was no scheduled Friday conference. So, no Monday Order List. They are keeping busy, though. 

They return next Thursday for a non-public argument session. That usually means swearing in lawyers, though maybe they will decide to drop opinions.