Supreme Court Justice Sonia Sotomayor once famously said there were days on the court on which its carefully manufactured conservative majority drove her to tears in the privacy of her chambers. Judging by the angry, pointed dissent she wrote on the court’s latest atrocity, instead of her private weeping, there might be a hole in the wall of her chambers in the shape of a copy of Blackstone.
What if the Government later determines that it sent one of these detainees to CECOT in error? Or a court eventually decides that the President lacked authority under the Alien Enemies Act to declare that Tren de Aragua is perpetrating or attempting an “invasion” against the territory of the United States? The Government takes the position that, even when it makes a mistake, it cannot retrieve individuals from the Salvadoran prisons to which it has sent them. The implication of the Government’s position is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise. ... The Government’s conduct in this litigation poses an extraordinary threat to the rule of law. That a majority of this Court now rewards the Government for its behavior with discretionary equitable relief is indefensible. We, as a Nation and a court of law, should be better than this. I respectfully dissent.
By a 5–4 count, Justice Amy Coney Barrett joining the three liberals in dissent, the court lifted a restraining order issued by Judge James Boesberg that stopped the administration from shuffling folks off to El Salvador under the Alien Enemies Act, a law so old that Thomas Jefferson personally was appalled by it. This means a couple of things: 1) It means Chief Justice John Roberts choked in the face of his more radical colleagues, and 2) it means that the administration has yet another loophole in the Constitution it can fly a C-47 through on the way to Central America. It also contains unmistakable echoes of Korematsu, the World War II legal land mine that enabled the internment of Japanese Americans. This latter consideration occurred to Justice Ketanji Brown Jackson while she was writing her pithier dissent. She pointed out that the court’s action on Monday is worse than the Korematsu court’s in one important way—it is far more cowardly.
I lament that the Court appears to have embarked on a new era of procedural variability, and that it has done so in such a casual, inequitable, and, in my view, inappropriate manner. At least when the Court went off base in the past, it left a record so posterity could see how it went wrong. See, e.g., Korematsu v. United States, 323 U. S. 214 (1944). With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.
In addition, Roberts “paused” an order demanding that Kilmar Armando Abrego Garcia, the 29-year-old Maryland man shipped off to the El Salvador supermax due to an “administrative error” as regards his legal residency in this country. The government laughably suggests it is helpless to rectify its error and bring Garcia home because, once they sent him to El Salvador, he wasn’t in U.S. custody anymore. Roberts bought this grotesque touch of Joseph Heller, proving once again that nobody ever will make chicken salad out of John Roberts, Chief Justice of the Supreme Court of the United States.
