Yesterday, May 16, the Supreme Court issued another ruling in the case of the Venezuelan people than Trump wants to deport to a gulag in El Salvador; read the opinion here. I posted about this case on April 19,April 20, and April 22.
The May 16 decision consists of (1) an eight-page unsigned (“per curiam”) opinion on behalf of the Chief Justice, the three Trump-appointed justices, and the three liberal justices, (2) a two-page concurring opinion by Justice Kavanaugh, and (3) a 14-page dissenting opinion by Justice Alito, joined by Justice Thomas.
Although the majority, per curiam opinion did not use words such as “bad faith,” “fibbing,” or “too cute for words” in describing the Justice Department’s position, it clearly implied that the government attorneys were prevaricating with the Supreme Court about the government’s plans to whisk the plaintiffs away—and then claim the Court had no jurisdiction as to individuals located in a foreign country.
The Court ordered, once again, that the Venezuelans should stay in this country pending further legal proceedings, and it remanded the case to the Fifth Circuit Court of Appeals for further consideration of how due process should work under the Alien Enemies Act, along with a variety of other considerations.
Justice Kavanaugh agreed with the majority’s analysis but would have kept the case in the Supreme Court and have the Court eschew further shilly-shallying, and just decide the damn case.
In his dissent, Justice Alito enlarged ad nauseam on the multiple ways in which the majority’s truncated, expedited procedure is in tension with the way things are normally done. As indeed they are. No shit, Sherlock. The government was lying to the courts, frog-marching the poor Venezuelans out of the country, and employing every bad faith trick in the books to use the normal, deliberative rules of the law of civil procedure in order to forestall real due process for immigrants.
Let’s look at the situation from 30,000 feet. What do we see?
First, Team Trump’s legal strategy—along will all the legal tactics that flow from that strategy—is to replace rule of law with a Ptemkin village that looks, from the outside, something like rule of law, but is not in fact rule of law.
Second, that legal strategy is doomed to failure unless a critical mass of the judiciary—and particularly a critical mass of the justices of the Supreme Court—are prepared to go along with it. (Sure, Trump could just order the police to arrest or kill all the members of the Supreme Court, and if the police obey the order, then Trump would win. But in that situation, the outcome would not be a legal Potemkin village, but rather a legal wasteland.)
Third, Team Trump seems to have thought that Justices Alito and Thomas, plus the three Trump-appointed justices would embrace the Potemkin village approach. Well, if that’s what Team Trump thought, then it appears they were right about Alito and Thomas but wrong about Kavanaugh, Gorsuch, and Barrett.
The real news here—the Man Bites Dog element—is that the three Trump-appointed justices did not bark in the night at Trump’s command.
Logical conclusion: the days are hastening on to the place where Team Trump is either going to have to back down on multiple legal fronts or it is going to have to declare, in words that are clear to the least intelligent folks among us, that the rule of law is over.
If it choose the latter option, it will be subject to vehement objections by all the Trump justices appointed in the first term–as well as a great many of the Trump Judes appointed to the courts of appeal and to the district court.
The unvarnished assault on the rule of law will come at a time when Walmart is running out of cheap goods, then Americans are being injured in multiple ways by cuts in government services, when small businesses are going out of business, and when Walmart is running out of cheap imported goods.
Facing MAGA 