Is the Supreme Court Standing Up to Trump?
The answer is complicated, but Chief Justice John Roberts may be treading a fine line between institutionalism and cowardice.
Is the Supreme Court Standing Up to Trump?
The answer is complicated, but Chief Justice John Roberts may be treading a fine line between institutionalism and cowardice.
by Garrett Epps
Law professors earn their pay by brain-teasing their students, supposedly for the pupils’ benefit. One prof I know likes to answer students’ yes-or-no questions by saying something like, “The short answer is ‘yes’ and the long answer is ‘no.’”
Asinine as it may seem, that is often the correct answer in legal matters: rules from a distance may seem straightforward and strict, but as a lawyer or court draws closer, they dissolve into an abstract pattern of unconnected dots that no one can decipher, much less enforce.
The Supreme Court has been giving this kind of answer on fraught occasions for virtually all of American history—and it has given that answer to challenges to Donald Trump’s ascent: boldly proclaiming the rule of law while noting that there may be a very particular reason why this particular rule can’t be quite, you know, enforced just so at present. Like a Magic 8 Ball, the Court may suggest we “Ask Again Later.”
The historical root of this two-step is Marbury v. Madison, the first important case in American Constitutional Law. In 1800, Vice President Thomas Jefferson won the White House, and his Democratic-Republican party won control of the federal government. For the Federalists, who were previously in charge, Jefferson was the antichrist. They expected the horrors of the French “Reign of Terror,” with guillotines erected in public squares and churches turned into “temples of reason.” And so they took advantage of the then-long “lame duck” session (changed in 1933) to confirm, Amy Coney Barrett-style, Secretary of State John Marshall as Chief Justice. Marshall was an Adams loyalist and, even better, Jefferson’s cousin (which, as every Virginian knows, is often a code phrase for “mortal enemy”). The Federalists soon contrived a case that would let Jefferson know in no uncertain terms that they would obstruct his program in any way they could.
It involved a nobody named William Marbury, whom Adams had named a justice of the peace but who, because of simple incompetence, hadn’t gotten the official document confirming that appointment when Adams left office. James Madison, Jefferson’s Secretary of State, told Marbury to pound sand: no commission for you. Charles Lee, Adams’s former Attorney general, asked the Supreme Court to order that Marbury get his job.
Chief Justice Marshall was in a pickle. It was politically essential that the new administration be told that the courts would stand in its way; however, it was unclear that the Supreme Court had the power to order the executive branch to do anything. Most people assumed that Jefferson and Madison were eager to lose the case (Madison didn’t even show up to argue) so they could tear up the Court’s “mandamus” and end what they saw as judicial meddling.
A no-win situation?
Marshall split the difference. He issued an opinion saying that, of course, poor Marbury was entitled to his job, Jefferson and Madison were bad, bad, bad, bad lawbreakers, terrorists, and general lowlifes, and that, of course, the federal courts could order officials to turn over the parchment.
But.
Wouldn’tcha know it? Marbury had filed his motion in the wrong court, so the Supreme Court could not issue any order, and he would have to start over again in a lower court. (He did, but time ran out on his term and the case went away.)
Marbury, as generations of law students can tell us, is the foundation for the Court’s power of judicial review of federal law. This is also the precedent for the Court producing thunder and lightning but no actual rain. In the recent emergency cases involving Trump, the court seems to be doing the same thing—allowing Trump, like Jefferson, to win by losing. Thus, in Department of Education v. California, the Court, 6-3, set aside an order requiring the government to keep paying education grants that Trump had frozen. Not that the state of California was necessarily wrong, you see, but—wouldn’tcha know it?—the challenge was brought to the wrong court, so the government could freeze the funds until it gets an order from the federal Court of Claims.
Or consider Trump v. J.G.G., which was decided on April 7. A group of Venezuelans detained in U.S. custody brought a challenge to Trump’s decision to invoke the Alien Enemies Act. This draconian 1798 law allows the president, “whenever there shall be a declared war between the United States and any foreign nation,” to seize any alien he doesn’t like and hustle them out of the country. Now, true, there is no declared war if by “declared war” you mean a war that anybody declares. But Trump doesn’t like Venezuela, and some Venezuelans in the country are in gangs so close enough to war for government work. Already in custody, the plaintiffs feared they would be hustled off to Venezuela or some even worse place and sought an order declaring the invocation invalid under the circumstances. The Court, 5-4, boldly proclaimed that these poor individuals deserve their day in court—the president owes them some procedure before they are disappeared—but (wouldn’tcha know it?) they had brought their challenge in the wrong court. Instead of proceeding as a group in the D.C. District Court, they needed to bring their cases, one by one, as habeas corpus petitions—in courts in whatever red-state immigration jail ICE has planted them. By a bizarre coincidence, a lot of these jails happen to be where judges are very deferential to ICE. But hey-ho, luck of the draw, they get some procedure, and of course, we are ruling against Trump that way.
We will see how many of these immigrants, held thousands of miles away from home with no right to appointed counsel, actually get habeas. Meanwhile, look at the Court standing up for the Constitution! You may applaud. Of course, the Court did not deign to defend District Judge James Boasberg, who had been confronting stonewalling in Court and a demand by Trump that he be impeached—and Articles of Impeachment filed by a Republican member of the House. It was a matter of the separation of powers, a collision of bloodless formal concepts.
Four Justices, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett (in part), and Ketanji Brown Jackson) declined to join the ovation, writing two stinging dissents. How much consolation we should take from this division is a difficult question.
Finally and most prominently, on April 10, the Court in Noem v. Abrego Garcia considered the plight of a Salvadoran refugee who had won an immigration order that he could stay in the U.S. because he might be persecuted by gangs in his native country. As part of a roundup of alleged gang members, ICE had grabbed him off the street—even though they couldn’t produce evidence of gang membership--and hustled him onto a flight to El Salvador (the one country he had been promised not to be returned to). He is being held in a notoriously brutal prison stuffed full of the kind of gang members who had threatened to kill him. District Judge Paula Xinis ordered that the government bring him back—in legal terms, “effectuate” his return. The Court of Appeals upheld that order. And the Supreme Court issued an order on April 10, finding that the government had made a mistake with Abrego Garcia and that they should do their dangedest to get him back.
The district court had ordered the government to “effectuate” his return, but—wouldn’tcha know it?—the Court found that was the wrong danged word.
That would require the government to actually do it, whereas Article III courts can’t require the executive to do an act of foreign policy like “effectuate” a return; the district court should order the government to “facilitate” the return. The unsigned, unanimous opinion was devoid of any statement that someone like Kilmar Abrego Garcia was in danger. Nor did it stick up for Judge Xinis. Instead, it was a sober, almost Wittgenstein-level discussion of abstract concepts; courts can order “facilitation” but not “effectuation.”
The opinion is, well, subject to interpretation. Early news reports suggested that the Court had unanimously sided with Abrego Garcia; the White House, however, claimed a total 9-0 victory. “Facilitation” means, they said, well... pretty much nothing. Attorney General Pam Bondi said that if El Salvador, for some reason, decided to release Abrego Garcia, the U.S. would provide him a plane; the Department of Homeland Security helpfully added that if that happened, it would cheerfully deport him again. In true Dreyfus-was-guilty fashion, it said that the mere lack of any evidence that he is a gang member doesn’t mean that ICE can’t say he is one.
In other words, Abrego Garcia could pound sand. As the court went back to lower courts, the Trump administration ridiculed the judge, claiming that “facilitation” means, in effect, leaving the porch light on but the door locked. At the same time, what happens to Abrego Garcia is somebody else’s problem.
The case returned to the Fourth Circuit, where an interesting thing happened. The court released an opinion by Judge J. Harvie Wilkinson III that blew the whistle on this solemn farce.
Wilkinson is 80 years old and a Ronald Reagan appointee. George W. Bush considered him for appointment to the high court. His conservative credentials are impeccable, and his intellect is unquestioned. A Reagan-era Justice Department official, he has been keenly protective of a president’s prerogatives. Indeed, in an earlier version of the case, he had been the first judge to suggest that “facilitate,” rather than “effectuate,” was the right word for what the court should order the government to do.
It turns out that, after 41 years on the bench, a jurist may acquire a nose for government slow-walking. In an opinion that drew nationwide attention on April 17, Wilkinson lowered the boom:
The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. . . . If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to “take Care that the Laws be faithfully executed” would lose its meaning.
It is very seldom that I have, after reading a judicial opinion, felt the urge to shed tears of joy. But here, at last, is a judge speaking the truth about the world we live in and the dangers we face. Wilkinson’s opinion demanded active measures from the government. Whether inspired by that courage, or having found of its own, the Court on Saturday night issued a fairly stern order: “The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.”
I will confess to a sneaking suspicion of Chief Justice John Roberts. He acts his part on the national stage with the tight-lipped aplomb of Chief Inspector Charles Dreyfus in the Pink Panther movies, trying to manage a court full of bumbling Inspectors Clouseau. No one can doubt that his commitment to the institutional interests of the Supreme Court and the federal courts in general can sometimes transcend his conservative instincts. As no other Chief Justice in history has done, he has twice—once in 2018 and again in connection with Trump’s call for the impeachment of Judge Boasberg—publicly rebuked the president for his vulgar attacks on federal judges. That is a genuinely unprecedented action for a Chief Justice to take.
Chief Justices, though, are subject to the withering gaze of history. As Roberts once said, “You wonder if you’re going to be John Marshall or you’re going to be [Dred Scott author] Roger Taney.”
There’s no way to predict which legacy he will leave behind. Perhaps the majority is keeping its powder dry and will strike back at Trump’s lawlessness in a landmark Nixon v. United States moment when Warren Burger’s Court made Nixon hand over the tapes that he knew were as incriminating as they were embarrassing. (Nixon, unlike Trump, complied.)
But one thing must be said now before we get the answer: There is a fine line between institutionalism and cowardice--and one can often not discern that line until one has irreversibly crossed it. Three months into the lawless Trump administration, the Court has probably not crossed it.
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Garrett Epps is the legal affairs editor at the Washington Monthly.
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