Form without substance, the John Roberts story

Yesterday, the Roberts Court made a critical doctrinal change involving the most foundational principle of Anglo-American law, in 4 paragraphs of occasionally pissy boilerplate that reads like Alito’s dumbest clerk lightly edited a Chat GPT prompt:

In a way the tone is almost as frightening as the substance. The dissent writes like it understands the stakes, and what kind of regime we're on the precipice of becoming. The majority writes like it's hearing a case about whether rollerblades can be taxed as vehicles.

[image or embed]— Julian Sanchez (@normative.bsky.social) April 7, 2025 at 6:27 PM

Needless to say, the holding that Trump’s AEA detention can only be challenged with individual habeas petitions is no minor technical change, but as Steve Vladeck explains is tailor-made to make it as difficult as possible to restrain Trump’s arbitrary detentions:

First, with respect to the 270+ individuals who have already been removed from the country (arguably in defiance of Chief Judge Boasberg’s rulings), there is at least some question as to whether habeas will even be available (and, if so, whether it will be effective). Indeed, this is the exact point on which the government is currently seeking emergency relief from the justices in the Abrego Garcia case, about which I wrote on Saturday.

If the Supreme Court comes back in the next few days and holds that folks like Abrego Garcia—who have already been removed and are in a Salvadoran prison—can use habeas to challenge their unlawful removals after the fact, that will help at least a little in those cases. And unlike with respect to the plaintiffs in J.G.G., there is good case law to the effect that venue for a habeas petition filed by someone outside the United States is proper in the D.C. district court (as in the Guantánamo cases). So lawyers could presumably try to file a habeas petition in D.C. on behalf of the individuals already removed to El Salvador—one that will depend upon how Abrego Garcia is resolved. But even if the Supreme Court sides with the lower courts there, and holds that federal courts can order the federal government to take steps to bring these folks back if their removals were unlawful, by vacating Boasberg’s TROs, the majority has made that review that much more difficult and potentially ineffective. That’s plenty alarming all by itself.

Second, and going forward, assuming that this Court is going to aggressively enforce the district-of-confinement rule for individuals still in the United States (which I wrote about in the context of the Khalil case), that means habeas petitions will have to be brought in the district in which those individual detainees are each detained. Justice Sotomayor’s dissent raises the specter of individuals being held all over the country, but I think it’s more likely most of these cases end up in the Southern District of Texas—and, thus, in the Fifth Circuit. (Much like the Department of Education ruling is going to likely mean that at least some of the funding cutoff cases end up in the Court of Federal Claims.)

I don’t think I’m speaking out of school when I suggest that there is no court in the country more likely to side with the Trump administration on everything from whether we’re under an “invasion” from Tren de Aragua to the amount of process to which alleged members of TdA are entitled than the New Orleans-based federal appeals court. Trading APA review for habeas, even if the remedies were otherwise commensurate, is trading the ideologically diverse (and national security-experienced) D.C. federal courts for the most right-leaning federal courts in the country. And the justices know that, too.

The venue shopping point is the most important — Roberts, Thomas, Alito, Gorsuch, and Kavanaugh want as many of whatever challenges are able to go forward heard by judges who are as reflexively pro-Trump as they are. This is only pro forma judicial review, and is not consistent with the controlling precedent (which the unsigned extended tweet doesn’t even mention.) And every elite liberal defending Kavanaugh despite his enabling of the previous Republican president’s torture renditions fully owns this.

Vladeck also observes that Roberts’s defense of judges from Trump’s attacks ring hollow when he then proceeds to throw them under the bus on Trump’s behalf without even the courtesy of a reasoned opinion:

And that leads me to my last point: This isn’t any old case; it’s the case in which the government has come the closest to outright defiance of a court order (something Chief Judge Boasberg is still in the middle of adjudicating). And it’s the case that led President Trump to call for the impeachment of a sitting federal judge for doing nothing other than rule against him (a statement that led to a surprisingly quick and aggressive rebuttal from Chief Justice Roberts). Not two weeks later, here’s Roberts providing the decisive vote to hold that, in fact, the case shouldn’t have been before that judge (or that court) in the first place, without even a hint that any of the government’s (profoundly disturbing) behavior in this case warrants any reproach. As Justice Sotomayor concludes her dissent, “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.”

Should be, but isn’t.