The Trump administration faced a series of setbacks in the lower courts this past week, topped off by a major loss in its crusade to cancel $2.2 billion in federal grants for Harvard. U.S. District Judge Allison Burroughs ruled that the assault on the university brazenly violated the First Amendment by mandating conformity with the administration’s views—though she also set Harvard on a winding path of additional litigation to restore the canceled grants. In one remarkable passage, Burroughs also criticized the Supreme Court’s cryptic shadow docket decisions, then condemned the justices for scolding lower courts that are unable to divine the meaning of these cryptic orders.
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Mark Joseph Stern: Two weeks ago, in a shadow docket order, Justice Gorsuch decided to write a little missive aimed at lower courts that were failing to divine exactly how SCOTUS wanted them to handle these decisions. He wrote: “Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them. This is now the third time in a matter of weeks this court has had to intercede in a case squarely controlled by one of its precedents.” Justice Kavanaugh joined this bench-slap to the lower courts. It was so harsh that the judge in this case, William Young, issued an apology from the bench. He said he really did not understand what the Supreme Court was trying to say in its shadow docket orders, and wasn’t really sure that they were precedential. In fact, the Supreme Court has never actually deemed shadow docket orders to be precedent. A few years ago, Justice Samuel Alito insisted that they were not fully precedential!
Anyway, in response to Gorsuch and Kavanaugh’s scolding, Judge Burroughs dropped an extraordinary footnote. She wrote: “The court respectfully submits that it is unhelpful and unnecessary to criticize district courts for ‘defying’ the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape, where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.” This is Judge Burroughs standing up for her colleagues, like Judge Young, and telling Gorsuch and Kavanaugh: You aren’t even explaining yourselves most of the time and you have the gall to accuse us of defying your orders? Get a grip.
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Dahlia Lithwick: I think what Judge Burroughs did was quite remarkable—she took a thwack at Justices Neil Gorsuch and Brett Kavanaugh in the opinion itself. I haven’t seen a lot of this punching up at the Supreme Court.
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Burroughs is not the only judge who is clapping back at the Supreme Court this week. On Thursday, Lawrence Hurley at NBC published a shocking piece citing 10 federal judges who are absolutely willing to say that the Supreme Court is not OK, and that they’re frustrated with the shadow docket rulings and the justices’ refusal to defend Article 3 judges against a pervasive pattern of threats and harassment—not just from the American public, but from the president and members of Congress.
Slate
Barrett underscored the disconnect between public perception and the Court’s inner workings, noting:
"I often ask new law clerks what surprised you most when you started? And one of the most common answers is the difference between what's happening on the inside and what people think is happening on the inside."
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"The court… can’t take into account public opinion in making individual decisions… you have to follow the law where it leads, even if it leads in a place where the majority of people don’t want you to go," she said.
Fox
Which is increasingly the way they're handling cases - on the shadow docket.
But colleges can't use racial profiling when accepting students.Earlier this week, the Supreme Court handed down a one-page order that greenlit federal immigration officers’ use of blatant racial profiling when conducting armed raids in the Los Angeles area. A lower court had temporarily barred ICE from detaining people based solely on factors like “they are speaking Spanish” or “they are day laborers waiting outside Home Depot in the morning.” By blocking that lower court order, the members of the Court’s conservative supermajority have once again used the shadow docket to give their very favorite president everything for which he asks. Only the three liberals noted their dissent.
Balls and Strikes
Good god.“We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work in a low wage job,” wrote Justice Sonia Sotomayor. She went on to describe the “indignities” of a ruling that functionally requires Latino people to carry enough documents to answer questions to the satisfaction of masked thugs who cannot stop beating the hell out of people for any reason or no reason at all. “The Constitution does not permit the creation of such a second-class citizenship status,” she said.
As is usually the case with this Court’s pro-Trump shadow docket jurisprudence, the majority did not explain its decision. But one justice, Brett Kavanaugh, wrote a concurring opinion only for himself, which contains—and here I apologize for the legal jargon—some of the stupidest shit I have ever encountered in the U.S. Reports.
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Kavanaugh cites the Court’s decision in Los Angeles v. Lyons for the proposition that the plaintiffs in this case—people who have been arrested by immigration agents—likely lack standing to sue, because they can’t prove that agents are likely to detain them again under the same circumstances. Lyons is a 1983 case about Adolph Lyons’s attempt to sue for violations of his Fourth Amendment rights after Los Angeles Police Department officers pulled him over for a broken tail light, ordered him out of the car, and then put him in a chokehold until he passed out. (When he came to, they still gave him a ticket.)
The Court, however, ruled that Lyons, a 24-year-old Black man, could not get an injunction barring the cops from using this chokehold in the future, because there was no evidence that the city had formally “authorized” officers to use chokeholds in the course of enforcing minor traffic violations. The majority further justified the result by arguing that Lyons could not show that the cops were imminently likely to find him, detain him, and put him—Adolph Lyons, specifically—in the same life-threatening chokehold in the future.
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Somehow, Kavanaugh’s Lyons discussion only gets less coherent. Again, the Lyons Court argued that Adolph Lyons was not in danger of being choked to the point of unconsciousness by law enforcement a second time. But as Sotomayor points out, in this case, the plaintiffs are likely to be detained again, because the evidence shows that immigration agents keep returning to the same places around Southern California, looking for vaguely Latino-looking people to fill their daily arrest quotas.
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The Trump administration should be able to go forward, he says, because the countervailing legal interests of undocumented people who want to “avoid being stopped by law enforcement for questioning” are not “especially weighty.”
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By framing the legal interests at stake primarily in terms of undocumented people seeking to evade police, Kavanaugh glosses over the interests of millions of Latino U.S. citizens and legal residents who do not want to risk getting gang-tackled on their way to work by neckbearded ICE goons whose forearm tattoos indicate a deep-seated passion for Nordic mythology. In his mind, there is no greater threat to the constitutional order than even temporary limitations on a Republican president’s ability to set aside the rights of people he does not like.
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Perhaps the silliest line in the opinion comes when Kavanaugh, perhaps gently prompted by a clerk who has ventured outside Northwest Washington at some point in the past 30 years, considers the implications of his reasoning for people who are “legally in this country.” Fortunately, Kavanaugh says, they have no reason to worry: “The questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States.”
Even without contradictory evidence, Kavanaugh's statement is fascistic and contra the US Constitution.Kavanaugh’s assurances, which read like a lightly polished excerpt from a court-mandated police training video, would come as news to Jason Gavidia, a U.S. citizen and plaintiff in this case who was attacked by armed immigration agents after he hesitated while trying to remember the name of the hospital in which he was born. The agents let him go only after Gavidia provided his ID card, which they did not give back. It would also come as news to Jorge Viramontes, another U.S. citizen plaintiff, whom agents subjected to four interrogations in nine days, at one point detaining him in a warehouse until they could verify his citizenship.
Or maybe he did.But the costs of imposing a universal “show me your papers” standard—on documented immigrants, undocumented immigrants, and U.S. citizens alike—do not seem to have occurred to Brett Kavanaugh, because he has never contemplated what it might be like to be targeted by such a standard in the first place.
He claims to “recognize and fully appreciate” that “many (but not all)” undocumented people come to the United States to “make better lives for themselves and their families,” and he professes his sympathy for those who feel “somewhat misled” by changes in U.S. immigration policy over the decades. But, Kavanaugh continues, because they are here illegally, the government is entitled to enforce the law against them; by comparison, he says, their interest in evading detection is “not particularly substantial.”
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Trump has to enforce the law under the basic limitations imposed by the Constitution, which protects documented and undocumented people alike. Kavanaugh seems incapable of understanding that the lower court’s order did not stop the Trump administration from arresting undocumented people pursuant to its anti-immigrant agenda. The order simply stopped the Trump administration from assuming that people are undocumented because of what they look like, and then throwing them in the back of an unmarked van and peeling out.
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In recent years, as the Court has embraced using its shadow docket to rewrite the law as the conservatives see fit, I (and many others) have often criticized the justices for not bothering to show their work. Kavanaugh’s choice to crank out an opinion this time nicely illustrates the benefits of their chosen approach.
