The courts will not save us from tyranny

The Supreme Court just washed its hands of its role in upholding the rule of law, the foundational principle that laws are meant to be followed by everyone, the government included, if we are to have a just society.

A Dominican man, left, and an activist, right, were detained by plainclothes officers with Immigration and Customs Enforcement after an immigration hearing at the immigration court inside the Jacob K. Javitz Federal Building in New York on June 6.Yuki Iwamura/ASSOCIATED PRESS

Anyone wondering if the Supreme Court would ever be a check on the Trump administration’s cruel and lawless rapid deportation campaign — or any other part of President Trump’s autocratic second-term agenda — got an answer Monday: a resounding “nope.”

In a brief, unsigned order, the court’s conservative justices cleared the way for the administration to continue the legally and constitutionally dubious practice of swiftly rounding up immigrants and whisking them away to countries where they have no ties at all, often in clear violation of court orders not to do so. Adding salt to the autocratic wound, these removals have routinely been conducted without giving the immigrants reasonable notice or the opportunity to argue why they should not be subjected to such treatment.

In so doing, the Supreme Court’s majority has essentially washed its hands of its role in upholding the rule of law, the foundational principle that laws are meant to be followed by everyone, the government included, if we are to have a just society.

I don’t know how this court comes back from such an astonishing abrogation of its role at the top of a separate, coequal branch of government tasked with, among other things, being a check against tyranny from the executive branch. If last year’s ruling granting Trump broad immunity for illegal acts committed during his presidency was the shot, this week’s order was the bitter chaser.

The court’s edict stems from a series of orders from US District Court Judge Brian Murphy. In the first, Murphy prohibited the administration from swiftly removing nationals of Cuba, Mexico, Laos, Myanmar, and Vietnam to South Sudan. Later, after the nationals were instead sent to Djibouti, where they are being housed on makeshift centers made of shipping containers, Murphy blocked the administration from sending other immigrants to Libya unless they are Libyan nationals.

But rather than let those prohibitions stand while the case was being adjudicated, the administration went to the Supreme Court to ask for emergency relief from the order.

Rather than so much as holding a hearing to make the government support its theory that the harm of stopping such deportations outweighed the risk posted to the noncitizens from being sent to countries in far-flung regions of the world where they may suffer neglect, abuse, or worse, the court gave an unexplained green light to allow the administration to just keep doing what it’s doing.

And the Trump administration heard the message loud and clear.

“Fire up the deportation planes,” Tricia McLaughlin, a spokesperson for the Department of Homeland Security, said in a statement after the order.

The only thing more shocking than the lawless result is the court majority’s display of cowardice. The court’s order was, as most shadow docket cases are, unsigned, and it gave no rationale for its conclusion. The only signal that it was a 6-3 vote down ideological lines is the scathing dissent by Justice Sonia Sotomayor, which Justices Elena Kagan and Ketanji Brown Jackson also joined.

It is not flatly illegal for the government to send detained immigrants to countries where they have no national, residential, or familial ties. But both federal law and an international treaty, of which the United States is a party, dramatically limit the circumstances in which that can happen.

In a nutshell, the government can only do so if the noncitizen is given sufficient notice of the plan, and if the government shows it has exhausted every other practical alternative. This is particularly crucial where the detained immigrant will be unduly burdened or endangered in the third country.

As Sotomayor noted, the Supreme Court’s order blesses the government’s practice of ignoring court orders — a clear sign of autocracy in action.

“This is not the first time the Court closes its eyes to [the government’s] noncompliance [with court orders], nor, I fear, will it be the last,” Sotomayor wrote, adding that the majority is “rewarding lawlessness.”

“Apparently, the Court finds the idea that thousands will suffer violence in farflung locales more palatable than the remote possibility that a District Court exceeded its remedial powers when it ordered the Government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled,” Sotomayor wrote. “That use of discretion is as incomprehensible as it is inexcusable.”

And this, of course, was the government’s calculation, given The New York Times story of a whistleblower complaint that a senior Justice Department official told subordinates that he was willing to defy court orders to carry out Trump’s aggressive deportations.

How this court can abet that is incomprehensible to me, and it should be to you. But now that the justices have shown what side of democracy they are on, I think it’s a fool’s errand to expect them to be a democratic backstop. This order was far more like a backhand.