Late night Supreme Court ruling

Just before 1:00 a.m. (ET) last night/very early this morning, the Supreme Court handed down a truly remarkable order in the latest litigation challenging the Trump administration’s attempts to use the Alien Enemy Act (AEA) to summarily remove large numbers of non-citizens to third countries, including El Salvador:

  Steve Vladeck Substack

Did they not already do that? I was reading they had loaded the planes.

According to media reports, starting on Thursday, a number of non-citizens being held at the Bluebonnet detention facility in Anson, Texas (in the Northern District of Texas) were given notices of their imminent removal under the AEA (in English only), with no guidance as to how they could challenge their removal in advance. Not only did this appear to be in direct contravention of the Supreme Court’s ruling in J.G.G., but it also raised the question of whether the government was moving detainees to Bluebonnet, specifically, to get around the district court orders barring removals of individuals being held at El Valle and other facilities.

The ACLU had already filed a habeas petition on Wednesday in the Northern District of Texas on behalf of two specific (anonymous) plaintiffs and a putative class of all Bluebonnet detainees—captioned A.A.R.P. v. Trump. Judge Hendrix had already denied the ACLU’s initial motion for a TRO—based on government representations that the named plaintiffs were not in imminent threat of removal (he reserved ruling on the request for class-wide relief).

Thus, once the news of the potentially imminent AEA removals started leaking out, the ACLU did two things at once: It sought renewed emergency relief from Judge Hendrix in the A.A.R.P. case, and it went back to Chief Judge Boasberg in the J.G.G. case—which has not yet been dismissed—since that case at least for the moment includes a nationwide class of individuals subject to possible removal under the AEA. And while it waited for both district judges to rule, the ACLU sought emergency relief in A.A.R.P. from both the Fifth Circuit and the Supreme Court.

Sometime after 7 p.m. ET on Friday, Chief Judge Boasberg declined to issue a TRO in J.G.G., concluding from the bench (in my view, correctly) that he couldn’t do so in light of the Supreme Court’s ruling in his case, specifically. Meanwhile, Judge Hendrix issued a brief opinion noting that, although he had been trying to move quickly on the ACLU’s renewed emergency motion, the fact that the ACLU had already gone up to the Fifth Circuit and the Supreme Court deprived him of jurisdiction to do anything further. (I’m not sure that’s true since those were requests for emergency relief, not plenary appeals, but c’est la vie.)

Thus, when many of us (myself included) went to bed last night, there was no specific order blocking removal of the Bluebonnet detainees, even though there were serious reasons to believe that the government was about to effectuate their removal without the notice and process the Supreme Court had required.

[...]

Then, a little before 1:00 a.m., the Supreme Court stepped in. As noted above, the cryptic order specifies that “The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.” And it notes that (1) the government can respond to the emergency application once the Fifth Circuit rules (which it did even later in the evening—denying emergency relief); and (2) Justices Thomas and Alito dissented, with an opinion from Alito apparently forthcoming.

Thomas and Alito. The Bobsey Twins of hateful injustice.

[T]he full Court didn’t wait for the Fifth Circuit—or act through the individual Circuit Justice (Justice Alito).2 Even in other fast-moving emergency applications, the Court has often made a show out of at least appearing to wait for the lower courts to rule before intervening—even if that ruling might not have influenced the outcome. [This] underscores how seriously the Court, or at least a majority of it, took the urgency of the matter.

[T]he Court didn’t hide behind any procedural technicalities. One of the real themes of the Court’s interventions in Trump-related emergency applications to date has been using procedural technicalities to justify siding with the federal government—including in J.G.G. itself (the first AEA ruling). One could’ve imagined similar procedural objections to such a speedy intervention, on a class-wide basis, in last night’s ruling. (Indeed, I suspect some of those objections are forthcoming in Justice Alito’s impending dissenting opinion.) Here, though, the Court jumped right to the substantive relief the applicants sought—again, reinforcing not just the urgency of the issue, but its gravity.

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[P]erhaps most significantly, the Court seemed to not be content with relying upon representations by the government’s lawyers. In the hearing before Chief Judge Boasberg, Drew Ensign had specifically stated, on behalf of the government, that “no planes” would be leaving either Friday or Saturday. True, the government hasn’t formally responded in the Supreme Court, but the justices (or at least their clerks) would have been well aware of the exchange—indeed, some of the clerks were likely listening to the hearing as it happened. In a world in which a majority of the justices were willing to take these kinds of representations at face value, there might’ve been no need to intervene overnight Friday evening; the justices could’ve taken at least all day Saturday to try to sort things out before handing down their decision.

[...]

We’re going through all of this rigmarole because no court has yet to rule on whether the government even has the power to use the Alien Enemy Act this way in the first place. [...] [I]t seems a little weird that we’re going through all of this effort to require process before the government can use a substantive authority it probably doesn’t have.

[...]

But this case arose only because of the Trump administration’s attempt to play Calvinball with detainees it’s seeking to remove under the Alien Enemy Act. The Court appears to be finally getting the message—and, in turn, handing down rulings with none of the wiggle room we saw in the J.G.G. and Abrego Garcia decisions last week. That’s a massively significant development unto itself—especially if it turns out to be more than a one-off.

Now What?

Continue reading.

Makes me wonder what they're angling for.  

UPDATE 01:25 pm:  I didn't pick up on this point.

That's seems like an extraordinary move on Roberts' part.  Can't imagine it went down well with Slimy Sam.