The Quisling Court
By 
A friend who is an immigration lawyer in the DC area:
Obviously we all saw the Supreme Court bless the administration’s use of racial profiling to arrest/detain people suspected of being undocumented. That was a real gut punch as the constitution has always been interpreted as requiring *some* minimal basis for detaining a person, and that person’s race or other classification is not sufficient. Whether under the 4th, 5th or 14th amendments, the government must have some articulable basis for arrest, and most arrests require a warrant. Now we have undone that structure when it comes to the undocumented population for reasons unknown beyond the obvious – the Supreme Court is not a neutral arbiter of legal rules but a partisan political arm of the Republican party. So they will bless extreme acts by the Trump administration like firing independent commisioners from agencies that are specifically protected by statute from firing at the whim of the president, or racial profiling, while overturning relatively milquetoast acts by Democratic administrations like DACA or student loan forgiveness. They were perfectly happy to uphold injunctions against Biden admin acts but will not uphold lower court injunctions against facially unconstitutional acts by the Trump administration. Really, I’ve known that SCOTUS is a partisan political branch since Bush v Gore back in 2000. No amount of Amy Coney Barrett book tour interviews, or John Roberts’ Hamlet-esque soliloquies change that.
What’s going on underneath the surface – The stuff that doesn’t make the news but has deep and profound impacts on people trying to obtain legal immigration status in the United States? We all see the arrests that masked (supposedly) ICE agents have been making in public and that is a fucking horror show. But what the general public has not seen is a series of opinions cominng out of the Board of Immigration Appeals that functionally eliminate any possibility for these folks who are rounded up to obtain release under bond. A client hired me on Friday to represent her brother who entered illegally back in 2022. I had told her that I thought he wouldn’t be eligible, but then I did a bunch of research and realized that there were good statutory arguments to raise that he is eligible. Friday at 5:30 pm (no joke) the BIA issues an opinion that cuts off my new client’s only real avenue for a bond. I spoke with him this morning and gave it to him straight – he is likely to stay detained for the pendency of his sort of weak asylum claim, and that he was unlikely to win asylum. So the likely outcome is that he will remain in detention for the next few months, then after he loses his asylum case he’ll be deported back to El Salvador. And fair enough – he crossed the border illegally and I don’t expect a ton of sympathy for him. But these folks getting arrested are likely to stay detained with no possibility of obtaining a bond. Appealing to the BIA is not going to change that, so the first possible marginally friendly audience for those arguments is the circuit court of appeals, which can take years to get to those Article III courts. The administration is banking on people saying I’d rather go back to my country than stay detained for months or years in what is essentially prison.
The administration is also firing immigration judges who have what they view as unreasonably high rates of granting asylum or other relief like cancellation of removal. For those who don’t know, the immigration courts and Board of Immigration Appeals are not independent Article III courts, but rather are part of the Dept of Justice so they answer to Pam Bondi who answers to Stephen Miller. When I started taking immigration cases almost ten years ago, there was a close to a million case backlog in the immigration courts. Now the backlog stands at almost four million. And they’re firing immigration judges. I just found out on Friday that the immigration judge who recently granted one of my asylum cases was among the latest round of firings. So there is pressure among the immigration judiciary to not only speed through and close cases, but also pressure to decide cases the way the administration wants, even when it conflicts with the Immigration and Nationality Act and the Article III federal courts that have interpreted it. For example, they have foreclosed asylum for two classes of individual for whom I have won many asylum cases – female victims of severe domestic violence and family members of people being persecuted. I’m in the Fourth Circuit and that court has been marginally okay on asylum case law, as opposed to the Fifth and Sixth circuits for example. But getting to the Fourth Circuit means losing in immigration court, losing at the BIA and then appealing to the circuit court. As noted, that can take years.
So we now have a system with record numbers of detainees, little to no ability for these detainees to obtain release on bond, an immigration court system with a backlog of about 4 million cases, and the administration dictating to the remaining immigration judges how to decide the cases before them. It’s the attempted systematic de-browning of America as we always said was the ultimate goal of the right wing Christo-fascists. Do you all feel safer?
ETA: Commenter and immigration lawyer Lee Esq. discussed the elimination of bond in an earlier LGM thread.
Immigration is an area where it’s particularly obvious that the current Supreme Court of the United States is essentially an extension of the Trump administration and the Republican party. Still, it’s merely a matter of degree as to how obvious this is in any specific area of law that features a high degree of partisan politicization, i.e., not a contract dispute between a couple of giant corporations or the like.
If you are a law professor and you are teaching your students something other than this, you are teaching nonsense. If you are telling students that the SCOTUS is a legitimate court of law, even if it does sometimes render an unfortunately partisan opinion here and there in some particularly fraught context, you are teaching nonsense, and pernicious nonsense at that. Once upon a time and a very good time it was, something like Bush v. Gore was in some ways a shocking outlier. Now, in the form of the shadow docket in particular, it is the model for contemporary SCOTUS jurisprudence, which can be summarized as, in any really important case, Donald Trump and the Republican party wins, and its opponents lose.
John Roberts and the rest of them are evil to the core, but they’re not nearly as stupid as their paymasters, so they occasionally throw opponents of the fash a bone in some marginal case or two, thus “proving” their impeccable impartiality, at least in the eyes of the willfully self-blinded. Such opinions always remind me of this scene:
There are two sides, and if you’re not on one, you’re on the other, even if you think you’re not. Especially if you think you’re not.