March 2025: “Trump announced on Saturday that he had signed a proclamation declaring that the Tren de Aragua gang was "conducting irregular warfare" against the U.S. and therefore would deport its members under the Alien Enemies Act of 1798.” (The Alien Enemies Act, known as Korematsu v United States, has been widely reviled since it was used to force Americans of Japanese descent into concentration camps in 1944.)
With that, hundreds of Venezuelan immigrants ‘suspected’ to be gang members, were sent off on tour of hell, real for them but nothing more than a video game for Trump and his toadies, who raced to evade the court system, defy the judges, and contort every law and regulation to suit their pleasure—one can almost hear them shrieking “score!” as they pwned the justice system they had just been elected to oversee, especially its most basic right: the right to a hearing for anyone accused. 1
By April the men were locked in El Salvador’s notorious CECOT prison, from which Trump insisted he had no way to free them. And The Supreme Court stepped in, ‘on an emergency basis’ …. to be sure they would remain there.
SCOTUS took the case, Trump vs J.G.G. et al, as a ‘shadow docket’ case. They made their decision without hearing arguments or gathering information, and ruled ‘per curiam’ — somehow no one except Brett Kavanaugh wanted to sign his or her name to a decision that declared it was protecting due process, with just a few little tweaks (for instance each immigrant would have to file his own suit, from the prison where they were held incommunicado) that would make due process nearly impossible. Steve Vladeck, Supreme Court whisperer extraordinaire, called it “a ruling by a Court that seems willing to hide behind less-than-obvious legal artifices to make it harder for federal courts to actually restrain conduct by the current administration that everyone believes to be unlawful.”2
Justice Ketanji Brown Jackson, dissenting from the majority wrote: This fly-by-night approach to the work of the Supreme Court is not only misguided. It is also dangerous….” Citing Korematsu Jackson continued: At least when the Court went off base in the past, it left a record so posterity could see how it went wrong. 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.” 3
As Elizabeth Goitein of the Brennan Center explained about Trump v J.G.G: “This ruling could effectively strip thousands of people of their constitutional right to due process. The majority opinion claims that individual Venezuelans targeted under the law will be able to challenge their own deportations. But the Court left ample room for gamesmanship. The administration will likely continue to whisk immigrants away… before they have an opportunity to get relief from a court.”
And that is exactly what happened. I’m not a lawyer but it seems to me that if their intentions were honorable, the Justices would listen to arguments, invite testimony, then write out their decision so it could be understood—even, in such an important case, studied—and then proudly sign their names. Roberts has often told us how important he and his fellow Justices are, and certainly their rulings change history. So why act so sneaky, and underhanded, as if they had something to hide? I’m sorry to say I suspect them of being members of a gang.
The Shadow Docket seems to be the basic mechanism through which this administration is carrying out its intentions. Project 2025 is the blueprint, and the SCOTUS majority are the agents of change, working under cover to follow that map, dismantling the Constitution step by step. The public sees mostly our elected clown prince, in profound mental and physical decline, flailing and strutting, demanding cruelties, killings, wars, distracting the electorate with 360 degree horror, earning a wink and a nod from the Roberts court.
We call this “the Trump administration”, but Trump, in his clear mental illness exacerbated by dementia, only casts the shadow under which the Supreme Court works. I constantly find myself trying to illustrate what a Red Queen world we live in, where the government, led like an orchestra of criminals by a 34 count felon and rapist, breaks the law consistently, while enforcing draconian punishment on innocents.
Our minds make meaning out of whatever shards and wisps we can find, and we base that on experience and habit. We’re not used to questioning the Supreme Court’s authority. Most of us don’t think a lot about what ‘per curiam’ means, or how the court system works. We’re unprepared for the layers of deception we face as the Roberts’ court empowers white Christian nationalism and its racism and misogyny. We crow over Trump’s idiocies, and it’s true that the incompetence of his band of toadies is one of our great hopes for avoiding end stage fascism.
Meanwhile ICE continues its rampage, often abducting people based only on a guess at their legal status, thanks to Noem v. Vasquez Perdomo, the SCOTUS decision that allowed racial profiling (wild guessing about people to be thrown into prison without hearings by ICE.) Jennifer Chacon of Stanford Law School says of the decision: “We do not know whether the decision was supported by five justices or six, though we know that Justices Kagan and Jackson joined Justice Sotomayor in dissent. The majority provided no reasoning at all.”4
The majority of the Supreme Court, like the majority of Trump’s cabinet, and the majority of ICE, is white, and male. They seem to consider that these qualifications must be enough, that they can rely on their own ‘common sense’, and we should abide by it. This is very much like the assertion by A.G. Sulzberger of the New York Times that he and his (overwhelmingly white, wealthy, straight, and male) colleagues can always be trusted to be ‘objective’ and therefore, right. After all, they always have been, no? (Let me whisper in your ear “weapons of mass destruction; weapons of mass destruction” until you begin feeling very, very sleepy.) It is hard to resist the pull of traditional sources of authority— hardest when you are very afraid. 5
Trump v J.G.G. and Noem v. Vasquez Perdomo, taken together, intend to wipe away our most basic civil rights—and they are starting, of course, with those whose skin is darker. We’re living through a backlash against Democrats’ immense gains in civil and human rights over the last 60 years. It’s a frightening backlash and we don’t know where it will end, but it is a backlash, and the high court is its leading edge. The majority’s attempt to hide its bias in the shadow docket only reveals the depth of its deceit.
Trump v J.G.G. continues its appeals in D.C. District Court, where Judge Boasberg ruled last year that the government must explain how it would offer due process to men snatched away across international borders. He thought it fitting to begin his ruling with a quote from Kafka’s novel of surreal horror, The Trial. If you read only one footnote, please make it the piece from Mother Jones linked here:.6
I think we can find hope and agency by studying Boasberg and the many lower and state court judges who are fiercely protecting the rule of law and human rights doctrine. I’m going to write more about that later this week, but for now, I’ll quote Jane Austen and say I have delighted you long enough.
No posts
Comments
Nothing yet. Say the first thing.
Sign in to join the conversation.