I wasn’t expecting this opinion this quickly. The Supreme Court heard oral arguments on the 15th, they issued their opinion on the 16th. It is only 24 pages long.
This case has many concurrent issues running through it. It is important to focus on what the opinion actually does, how it does it, and what the legal issues the Court is attempting to resolve.
What the holding is, what it means
The Supreme Court has issued an injunction stopping the deportation of TdA terrorists while the Fifth Circuit Court issues a new opinion. This injunction stands until the Supreme Court issues their opinion in this case after being fully briefed and oral arguments given, OR if the Court denies certiorari, OR neither party appeals from the Fifth Circuit Court.
This Supreme Court Order vacates and remands the case back to the Fifth Circuit with specific instructions:
I hope you realize what a slap in the face the highlighted section is to the inferior courts. The inferior courts are well aware of the Winter factors. They are well aware of the order in which the factors should be evaluated.
This line is written to all inferior courts. It is a blunt warning that the inferior courts should apply the Winter factors, correctly, to any injunction (or stay) being granted.
The second part is the Supreme Court punting. They want somebody else to do the heavy lifting on “what notifications need to be given to afford a terrorist due process?”
The J.G.G. plaintiffs are claiming it is 30 days. The state has argued that 24 hours is more than enough. The Fifth is likely to come down with something closer to the state’s standing.
Another part of this, is that there is a question of “adequate notification.” The plaintiffs want the notifications to be in English and Spanish. The state provided the notifications in English only. Since these people are in the United States, it seems reasonable to ask that they figure out how to read an English document or get a translation.
And, as one pundit on X put it, the government should give notification to every criminal alien they currently have detained, and any new ones they pick up, a notification of deportation. This will start that clock running and whatever time is finally determined, the state will be that much closer to the time limit.
Finally, this injunction is not going to keep any of these criminal aliens in the United States.
If you are in our country illegally, you can be deported. That is a full stop. If you are a criminal alien, you can be deported.
Trump declared TdA to be Alien Enemies, then used the Alien Enemies Act to deport them.
He did not need to use the AEA!
All the focus on the AEA is a distraction. The Trump administration could load all those terrorists on to planes tomorrow morning as criminal aliens and ship them down to CECOT with no issues. As long as they don’t use the AEA for the source of authority.
What wasn’t addressed
The Solicitor General in oral arguments and in the briefings advanced the argument that universal injunctions are bad. That these rogue, inferior court judges do not have the authority to block the executive with nationwide injunctions.
This opinion does not address universal injunctions.
When Democrats are in office and a court issues a universal injunction, Sotomayer, Kegan, and Jackson Brown are in full agreement with the rest of the court that universal injunctions are wrong.
When Republicans are in office and a court issues a universal injunction, Sotomayer, Kegan, and Brown believe that universal injunctions are great.
Legal Games
This case should not be in front of the Supreme Court. It is here because of games played by the plaintiffs (bad guys).
The D.C. District court, having had their hands slapped, were on warning not to take cases outside their jurisdiction. This meant the case was filed in Texas, where the terrorists are housed, pending deportation.
The lawyers for the plaintiffs opened the case, then called the judge and demanded action. The transcript of that call was entered into the record by the judge. He was not happy.
The call was an ex parte communication. This is in violation of the Code of Conduct for Federal Judges, Canon 3(A)(4)) and Fed. Rule Civ. Proc. 65(b)(1).
Regardless, the judge in the case was working on the complex issues involved in this case.
After the judge filed his remonstration of the plaintiffs’ lawyers, the plaintiffs filed a motion for a TRO.
They demanded the judge respond within 42 minutes, or they were going to appeal the case. 133 minutes after filling the motion, they filed an appeal to the Fifth Circuit.
The Supreme Court majority, seven justices, felt that the plaintiffs were right in appealing. Thomas and Alito dissented.
The case was moving rapidly, the judge was responding to the motions being filed. The important aspect of the judge’s response was he had given the state 24 hours to respond.
The plaintiffs knew this before they filed. The judge had pre-emptively told the state they had 24 hours to respond.
The plaintiffs didn’t like this. They felt that the judge should issue the injunction as if he were a robed, rogue D.C. district court activist, litigating from the bench. This Texas judge wasn’t a slave to the leftist agenda. He was doing his job correctly.
Conclusion
If Thomas and Alito are on one side of the argument, and you are on the other side, you are wrong. Having been there myself, I know of what I speak.
Alito and Thomas are superb at what they do. Trust them.
Final Thoughts
The Supreme Court majority was making judgments about what the inferior courts should have done with 20/20 hindsight. There are things in the record now that were not there when the lower courts issued their orders and opinions. Thomas and Alito point this out and tell the majority to follow proper procedures.
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