In the American system, courts don’t make law; they interpret it. The act of interpreting the law requires, well, interpretation—not mere pronouncement, but an explanation for that pronouncement, backed up by law, evidence, and logic.
That’s why the Supreme Court’s failure to offer any sort of reasoning to justify its order in Department of Homeland Security v. D. V. D is a threat to the rule of law, a reward for defiance, and a horrific example of a judicial process off the rails. The order is, unfortunately, only one of a recent spate of unexplained orders by this Court.
The case involved the efforts by DHS (where I worked from 2005 to 2009 as a George W. Bush appointee) to deport aliens who are allegedly illegally present in the United States to third countries (that is, to countries other than the one from which they came) without affording them notice or due process. At issue was Donald Trump’s efforts to send several individuals to South Sudan, where, they said, they would be subject to torture. Trump’s process denied them the opportunity to prove that they had a “credible fear” of harm and to argue that sending them there violates the Convention Against Torture (to which the United States is a signatory). A district court in Massachusetts had provided a preliminary-injunction order that prohibited sending the individuals to South Sudan without a hearing, leaving them stuck in limbo en route in Djibouti. The Supreme Court order lifted that injunction.
The order is so problematic that two commentators have dubbed it “the worst Supreme Court decision of Trump’s second term.” But even that is, in a way, too generous. Calling the order a “decision” suggests that the Court offered reasons for its judgment.
In D. V. D., in what could be, quite literally, a matter of life or death, the Court simply ordered the injunction lifted.
This disregard for explanation is destructive to the idea that law matters. Reason and persuasion are a court’s stock in trade; as Aristotle said, “the law is reason.” Reason is all that stands between a court’s claim that it is doing “law” and the challenge that it is doing “politics.”
At least one of the conservative justices, Amy Coney Barrett, has said that she understands the importance of justification. Three years ago, she gave a speech at the Ronald Reagan Presidential Foundation & Institute, in which she movingly spoke about what she viewed as the Court’s defining characteristic—the commitment to explaining its decisions in public. To those who criticized the Court (this was in the immediate aftermath of the Dobbs abortion decision) for imposing a political-policy position, she had a simple response: “Read the opinion.” Even the most odious of the Court’s decisions, such as the fugitive-slave case, Dred Scott, and the Japanese-internment case, Korematsu, offered reasons for their analysis—reasons that could be read and understood then and today, however unconvincing and repulsive they were.
But at least one could be repulsed and unconvinced by them! Even poor reasoning in controversial decisions, such as in the transgender-health-care decision this term, shows how the Court reached its decision and allows for the possibility of a counterargument. One can’t argue with a void. The complete absence of any attempt to explain (especially in controversial 6–3 cases such as D. V. D.) turns the Court into a mere vote-tabulation machine, accumulating political preferences by a “yes” or “no” accounting that is functionally indistinguishable from how Congress passes legislation.
If Barrett wants us to read the opinion, she has to write it first. And perhaps in the act of writing, the Court might have recognized the error of its ways.
In the D. V. D. case, a Massachusetts district judge had issued first a temporary restraining order (TRO) and then a preliminary injunction requiring immigration officials to tell immigrants where they were going to be deported to and allow them to object if they feared they would face torture at their intended destination. Whatever one may think of that requirement—and I think it is an eminently reasonable one—the Trump administration should follow court orders while a case is pending. If it disagrees with such a requirement—as it did—it should appeal the ruling, not ignore it.
The administration did appeal the ruling; it did not, however, obey it in the meantime. This is a problem. To buttress the general requirement that rulings should be obeyed, the law has an overarching principle that courts should grant relief only to those who come before it with “clean hands.” There should be no reward for bad behavior.
No longer. In D. V. D., the Trump administration came before the Court with its hands as dirty as possible. As Justice Sonia Sotomayor recounted in her dissent, “In violation of an unambiguous TRO, the Government flew four noncitizens to Guantanamo Bay, and from there deported them to El Salvador. Then, in violation of the very preliminary injunction from which it now seeks relief, the Government removed six class members to South Sudan with less than 16 hours’ notice and no opportunity to be heard.”
But far from punishing this executive defiance, the Court rewarded it, relieving the Trump administration of its obligations. As Sotomayor put it, “This is not the first time the Court closes its eyes to noncompliance, nor, I fear, will it be the last. Yet each time this Court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law.”
All of this would likely not have been acceptable even if the majority had chosen to tell the nation why it did what it did. But as it is, Americans can infer only that the majority simply wanted what it wanted, and couldn’t be bothered to explain its decision to the public, to the district-court judges below (who can only assume that the Court will no longer “have their back” in the future), and to the individuals who have been deported to war-torn South Sudan, a country to which they have no apparent connection.
Worse yet, by giving the Trump administration what it wanted, even though it openly defied the district court, the Court seems to be inviting yet more defiance of the sort. Certainly, that is how the administration will read the decision, especially in the absence of any limiting explanation.
If it had chosen to write, the majority of the Court might also have explained how it analysed the balance of equities in its decision. One factor in injunctive relief is that a court is required to determine who would be harmed more in the interim and grant relief to try to prevent that greater injury. It would have been nice for the Court to have offered even a word or two about why it saw the possibility of being sent without notice to South Sudan as a less harmful result than the government being subject to restraint while a case is pending. One would love to “read the opinion” about why the Court thinks thus.
The reasoning is anyone’s guess, and that is at least part of why the district-court judge initially concluded that the Supreme Court’s order didn’t apply to a portion of the case pending before him. The Court had only itself to blame for his confusion and soon issued a clarification of its order, again without a word of substantive justification. As Sotomayor wrote in response to the Court’s peremptory, cryptic order: “The Court’s continued refusal to justify its extraordinary decisions in this case, even as it faults lower courts for failing properly to divine their import, is indefensible.”
Finally, on the merits, the substantive result of this decision portends possible death for those who have now been sent to South Sudan and immigration chaos for the broader system, again without any explanation of why this result is mandated by law. In two earlier unexplained decisions, the Court allowed the Trump administration to withdraw “temporary protected status” and “humanitarian parole” status from individuals who had received those designations during the Biden administration. As the names imply, immigrants with those designations are allowed to stay in the country. Once rescinded (as the Court now says Trump may do), the aliens in question are required to leave the United States, and if they do not do so voluntarily, they may be deported. Taken together, these decisions mean that more than 500,000 immigrants who are lawfully present in the United States are now eligible for wholesale expulsion to parts unknown. Under the Court’s orders, Trump could, in theory, send 100,000 Venezuelans to Bhutan if the Bhutanese would agree to take them, all without a word of explanation.
This is not law and reason. Rather, it is power, plain and simple. The Court’s actions look and feel like nothing so much as the authoritarian rule of six Platonic Guardians, who, without a hint of humility, are so convinced of their own rectitude that they offer their subjects not even the courtesy of justification.
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