What’s the Court Up To?

I don’t trust this Court any farther than I can throw Sam Alito (I’d like to at least try that one though). But it’s notable that for all we talk about Trump as the ultimate disaster of American politics, the two justices that are the most extreme are still the appointees of the two Bushes. A context worth considering. Anyway, Elie Mystal speculates on what the Court might be up to and whether they might, in the end, be something of a backstop of American institutions.

At 1 o’clock on the morning of Saturday, April 19, the Supreme Court issued a terse, one-paragraph order that amounted to John Roberts telling Donald Trump to stop playing in his face. The court, by a presumed vote of 7-2, ordered Trump to halt a number of planned deportations to El Salvador of immigrants being held in Texas. I believe this is the first time that a majority of Supreme Court justices have gotten pissed at the Trump administration’s lawless refusal to follow basic court orders. If the court is ever going to fight for constitutional principles in the face of fascist overreach, it might be here and now.

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The court’s decision to issue this ruling when it could have opted to hide behind technicalities and courtesies tells me that the justices who ruled in the majority were fed up with Trump’s games. Trump was attempting to make an end run around the Supreme Court’s authority, and not only did the court tell him “no,” it told him “no” in the middle of the night, without even letting his lawyers or his Manchurian justices (Thomas and Alito) spit out their objections. On Holy Saturday, the court kept its eyes on the good news, instead of getting distracted by all of Trump’s rotten easter eggs. The majority told Trump to stop playing in their face.

The ruling is really the first time I can think of when the court didn’t let Trump get away with legal time arbitrage—by which I mean it didn’t let him take advantage of the fact that the executive branch can move faster than the judicial branch and make its policies a reality before the court can weigh in on its legality. And Trump, clear as I can tell, actually complied. The buses were turned around. The victims in A.A.R.P. are still in the United States, for now. They likely wouldn’t be if the court had waited until Monday morning to issue the same ruling. They likely wouldn’t be even if the court had merely let Alito dawdle on his keyboard through the weekend to write his dissent.

Of course, nobody should be claiming victory just yet. First of all, the court has merely issued a procedural restraint. It still hasn’t gotten close to ruling on the merits of whether Trump can use the Alien Enemies Act as the excuse to carry out mass deportations, and the betting money says the hyper-conservative court will still eventually allow Trump to banish whoever he wants. And while Trump seemed to follow this late night Supreme Court order, there’s no guarantee he’ll follow the next one. It’s likely that the Trump administration simply didn’t expect the court to pull a 1 am order out of its hat: next time, the attorneys will be ready for it and have some obviously specious argument ready for why its victims can still be deported. The Trump administration has already gotten around lower court orders by claiming, without evidence, that the abductees were deported before the court was able to file papers ordering the government to stop. I imagine that’s a trick it will use to try to evade compliance with the Supreme Court, before long.

Still, to put this all in a broader context, the only other time the legal world waits for late-night or early-morning Supreme Court orders telling the government what it can or cannot do is in the context of death penalty cases. Death row inmates are consistently in the position of waiting for a ruling on their final appeal while their executioners sadistically hit “refresh” on their computers, hoping for the go-ahead to murder them. Supreme Court justices (even the ones I hate) are known to take their roles as the final arbiters of life or death seriously, and regularly work late into the night dealing with emergency appeals from the condemned.

Issuing an order at 1 am on Saturday is a pretty clear indication that the justices understood that their ruling was, in fact, a matter of life or death. It’s an indication that they knew that the people being herded onto buses in North Texas were being sent to their doom.

We’ll see! I guess.