Hello! This week I’m exploring whether federal judges should treat the Supreme Court’s cryptic emergency orders as binding commands.
Justice Elena Kagan described the many shortcomings of such orders in a dissent this week, stressing how they differ from the elaborate decisions that follow many months of briefs, arguments and deliberations in more traditional cases.
“The court receives scant and, frankly, inadequate briefing about the legal issues in dispute,” she wrote of the emergency docket. “It does not hold oral argument or deliberate in conference, as regular procedures dictate. It considers the request on a short fuse — a matter of weeks.”
“And then,” she added, “the court grants relief by means of a terse, tonally dismissive ruling.”
Enter Judge Brian Murphy, who has been on the federal bench in Boston for a little more than a year. He has already distinguished himself in at least two ways. His forceful rulings have illuminated and tried to thwart the Trump administration’s efforts to send immigrants to some of the most remote places on the planet.
And he has repeatedly been rebuked in emergency orders from the Supreme Court.
Undeterred, Judge Murphy issued another decision last week holding that the administration’s approach to shipping immigrants to countries they have no connection to was unlawful. If the government tries to do that, he said, the Constitution and immigration laws require giving the migrants a chance to object.
There is a war going on in the federal courts over almost every aspect of the administration’s immigration policy. But this dispute may take pride of place.
“This is a battle royale, both on the merits and on the relationship between lower courts and the Supreme Court,” said Stephen Yale-Loehr, a retired immigration law professor at Cornell.
In a statement, the Department of Homeland Security pointed to its earlier victories. “We are confident we will be vindicated again,” the statement said, adding: “D.H.S. must be allowed to execute its lawful authority and remove illegal aliens to a country willing to accept them.”
Judge Murphy, for his part, wrote that he had been “forced to wrestle with the fact” that the Supreme Court had blocked an earlier ruling in the case, and said he “could be missing something in the final analysis.” But he concluded that his latest decision was meaningfully different from the earlier one, addressing a broader array of claims and resulting in a final judgment for the challengers rather than preliminary relief.
Unclear Commands
What are judges to do? They are, of course, required to follow clear commands from the Supreme Court. But the justices’ orders and statements in Judge Murphy’s case all arose on what critics call the shadow docket, which is not characterized by clarity.
Last June, in a one-paragraph order that included not a hint of reasoning, the court blocked a preliminary injunction from Judge Murphy that said the government had to give immigrants a chance to show that they would face the risk of torture before sending them to the ends of the earth. The court’s three Democratic appointees filed a 19-page dissent.
That same day, Judge Murphy still found that the Supreme Court’s order did not affect eight men being held temporarily on a U.S. military base in the East African nation of Djibouti. The administration raced back to the Supreme Court, accusing the judge of “a lawless act of defiance.” It asked the justices to “consider ordering that the case be reassigned to a different district judge.”
The Supreme Court again sided with the government last July in an unsigned opinion. Judge Murphy was wrong, the justices agreed. But they went on to say that they assumed he would now comply, and so “we have no occasion to reach” the request that he be kicked off the case. Justice Kagan, who had dissented the first time, voted with the majority.
The men were promptly transferred to South Sudan. A State Department travel advisory has this to say about that troubled nation: “Do not travel to South Sudan for any reason. U.S. citizens are at risk due to unrest, crime, health, kidnapping and land mines.”
Then, last August, in an unrelated case on government grants, Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, took another swipe at Judge Murphy, saying he and other judges had engaged in judicial defiance that had required the Supreme Court “to intercede in a case ‘squarely controlled’ by one of its precedents.”
That is an awfully categorical statement to make about an order that contained no reasoning.
A Candid Answer
Dissenting last July, Justice Sonia Sotomayor despaired on Judge Murphy’s behalf.
“Today’s order,” she wrote, “not only excuses (once again) the government’s undisguised contempt for the judiciary; it also leaves the district court without any guidance about how this litigation should proceed.”
“Perhaps the majority hopes,” she added, that the judge “will simply give up on adjudicating this case.”
There seems little chance of that.
Judge Murphy, a former public defender who was confirmed in the final weeks of the Biden administration, seems profoundly troubled by the Trump administration’s stance on so-called third-country deportations. His discomfort can probably be traced back to an exchange last March when he told a government lawyer, repeatedly, that he wanted to make sure he understood her argument correctly.
He quoted the exchange twice in last week’s decision, which he paused for 15 days to let the government seek a further temporary suspension from an appeals court.
“Is your position that the government can decide right now that someone who is in their custody is getting deported to a third country, give them no notice and no opportunity to say, ‘I will be killed the moment I arrive there,’ and, as long as the department doesn’t already know that there’s someone standing there waiting to shoot him, that that’s fine?” Judge Murphy asked.
The lawyer, Mary Larakers, paused. Then she said: “In short, yes.”
Other Legal News
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The Justice Department failed to build a criminal case based on the use of an autopen to sign presidential documents by former President Joe Biden and his aides, despite calls from President Trump to investigate the practice.
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The Justice Department is trying to stall disciplinary proceedings against its lawyers by state bar associations.
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The Trump administration, after saying it would abandon its legal attack on law firms, changes its mind.
Mailbag
Nine Is Not a Magic Number
What are the steps required, and by whom, to expand the size of the Supreme Court?” — Skip Heaps
The Constitution allows Congress to add or subtract seats, and it has done so several times, though not since 1869. Over the years, Congress has reduced the number of seats to as few as five and increased it to as many as 10. The changes were often made for partisan advantage.
New seats, like vacancies created by retirement, death or impeachment, give the president a chance to nominate a new justice, subject to confirmation by the Senate.
No president has tried to change the size of the court since 1937, when President Franklin D. Roosevelt introduced what came to be known as his court-packing plan. It failed in the immediate sense: The number of justices stayed steady at nine. But it seemed to exert pressure on the court, which began to uphold progressive New Deal legislation.
Opinion polls show little support for expanding the court, which may be why Trump last month accused Democrats, with capital letters filling in for logic or evidence, of planning to “PACK THE COURT with a total of 21 Supreme Court Justices, THEIR DREAM.”
I’d love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at [email protected].
What I’m Reading
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A friend-of-the-court brief from the U.S. Conference of Catholic Bishops arguing that “Western tradition, the Constitution and the teachings of the Catholic Church support birthright citizenship because it recognizes the equal dignity of every human person.”
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A short essay by William Baude — prompted by the American Bar Association’s friend-of-the-court brief supporting birthright citizenship — that asks why, at least in some circles, the A.B.A. is viewed as neutral, and the Federalist Society as partisan.
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“John Marshall: Definer of a Nation,” by Jean Edward Smith, but just the stuff about Madeira (keep reading).
Closing Argument
Justices’ Wine Choices: Madeira, Chianti and Opus One
At an argument Monday over whether the Second Amendment allows the government to disarm marijuana users, Justice Gorsuch said that the founding generation knew how to party, and suggested that the occasional joint or gummy should not require people to forfeit a constitutional right.
“John Adams took a tankard of hard cider with his breakfast every day,” Justice Gorsuch said. “James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn’t much of a user of alcohol — he only had three or four glasses of wine a night, OK?”
Justice Gorsuch might have mentioned a founding-era member of his own court, too. Chief Justice John Marshall was known to buy two 126-gallon casks of Madeira, the fortified Portuguese wine, a year. His fondness for it caused Washington wine merchants to start labeling their best Madeira “The Supreme Court.”
In Marshall’s time, the justices lived together in a boardinghouse and agreed, for reasons lost to history or in a bit of judicial whimsy, to drink the chief justice’s Madeira only on rainy days. If the weather was good, Chief Justice Marshall would nevertheless declare that it was raining somewhere, and commence pouring.
These days, the justices seem less hardy.
In remarks in 2016, Justice Ruth Bader Ginsburg, who died in 2020, recalled a festive dinner before a State of the Union address that she once attended with Justice Anthony Kennedy and other colleagues.
“Justice Kennedy came with a couple of bottles of Opus One,” Justice Ginsburg said, referring to a very good wine. “That was the first time I fell asleep during the State of the Union.”
In 2009, Chief Justice John Roberts and his wife, Jane, had dinner at an Italian restaurant on the Upper East Side of Manhattan, where they were left in peace by the other patrons, among them the writer Gay Talese.
“After two hours of pretending not to notice them,” Talese wrote, “we were certainly respectful (and grateful) when, as they stood to leave, the chief justice himself said: ‘Excuse me, but we cannot possibly finish this wonderful bottle of wine, and I wonder if you’d like to try it.’”
Talese said sure, and he had the chief justice sign the bottle. It was a 2005 Chianti Classico, from Villa Mangiacane. Thomas Jefferson would have finished it.
Read past editions of The Docket here.
Adam Liptak is the chief legal affairs correspondent of The Times and the host of The Docket, a newsletter on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
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