It's Time for the Supreme Court to Step Up

If the Supreme Court won't stand up to Trump, the rule of law is over in America.

by Jeremy Novak

There was a time when the judiciary’s delicate balancing act between the federal branches was seen as a virtue; an embodiment of restraint suited to a more stable era. In recent history, institutional conflicts were matters of nuance, not existential threats to the system. But that time has passed.

In the age of Trumpism, we need clear communication from the courts, and we need them to take charge.

Some judges are taking a stand against Trump’s obvious abuse of power. Judge Wilkinson of the U.S Court of Appeals for the Fourth Circuit rebuked Trump’s lack effort to follow court orders to retrieve Kilmar Abrego Garcia. Chief Justice Boasberg of the U.S. District Court for D.C. made efforts to hold Trump officials to account with contempt hearings after they blatantly defied his orders.

Both have been direct and unflinching in their push back against the Trump Administration’s extreme assertions of executive power. The Supreme Court however, is not meeting the moment. Their language is weak and ill-defined and it’s enabling further misbehavior by Trump and his team.

The Trump administration’s hostile reactions to recent Supreme Court decisions show that they are willing to use whatever tactics necessary to exploit these weaknesses. Trump will appeal any loss as many times as needed to get his case in front of the Supreme Court. With a dominant conservative majority, half of which were handpicked by him, Trump thinks they will see things his way and allow him to continue his agenda unencumbered.

But if the Supreme Court wants to remain relevant, they will have to push back and make it more obvious what they expect in their rulings, with plain, forceful language.

Miller Time

Stephen Miller, the White House Deputy Chief of Staff, and the most outspoken proponent of cruel and illegal deportation tactics, had a very telling moment in the recent press conference held by Trump and El Salvadoran president Nayib Bukele.

When a reporter asked whether Trump would request that Bukele return Garcia to the U.S.—as ordered by the U.S. District Court of Maryland and upheld by the Supreme Court—Miller responded with the following statement:

The Supreme Court said the district court order was unlawful and its main components were reversed, nine-zero, unanimously, stating clearly that neither secretary of state nor the president could be compelled by anybody to forcibly retrieve a citizen of El Salvador from El Salvador

Trump intervened her to emphasize the unanimity of the court’s ruling, and they had this exchange:

Trump: And what was the ruling in the Supreme Court, Steve, was it nine to nothing?

Miller: Yes, it was nine to zero.

Trump: In our favor?

Miller: In our favor, against the district court ruling, saying that no district court has the power to compel the foreign policy function of the United States

It’s long been understood that Trump surrounds himself with yes-men and -women that are afraid to tell him bad news. Miller is the yessiest of yes-men, and he’s obviously pushing the idea that Trump won this Supreme Court case unanimously, which isn’t true. But……

Highly Spinnable

Based on the language in the decision you could see how people like Miller could pretend it’s a win and rely on that interpretation to execute their agenda.

Here’s excerpts from the SCOTUS decision that relate the ambiguousness :

The application is granted in part and denied in part, subject to the direction of this order.

The rest of the District Court’s order remains in effect but requires clarification on remand.

The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.

The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.

Huh?

First of all, the decision is 9-0, but it takes a bit of reader inference to come to that conclusion. It didn’t explicitly state the justices’ votes, but it did not note any dissents either.

It’s almost as though Justices Thomas and Alito were doing the judicial equivalent of Gretchen Witmer holding a folder in front of her face to avoid having her picture taken with Trump. It’s like they’re saying, “we’re going to side with decency and normalcy on this one, but please don’t tell anyone.” Danny Zuko would be proud.

But what was the decision? Does the Trump administration have to get Garcia back to the States or not? Unfortunately, it’s complicated. Or rather, SCOTUS complicated it by not just saying unequivocally that the District Court order had to be followed. They had to elaborate further and ask for “clarification” regarding the use of the term “effectuate” while noting that the term is “unclear” and “may exceed the District Court’s Authority” and that the District Court should do this “with due regard for the deference owed to the Executive branch in the conduct of Foreign Affairs.”

Voila! What should have been considered an obvious loss for Trump can therefore be easily spun as a win.

The fact is, Trump lost the case. The order by the District Court, which Trump appealed, was ruled to remain in force. But Miller can claim a win due to the unclear language about the court’s authority. They focused on the fact that SCOTUS said the court can’t really order the U.S. to make another country return Garcia.

But they could have just clearly stated the administration was in the wrong and should do everything they can to make it right.

Giving an inch

In a separate decision regarding the immediate deportation of migrants accused of being in a Venezuelan gang, SCOTUS gave the Trump administration another victory. They declared that Trump can deport these folks, but that the migrants still required their day in court. They stated that the “detainees must receive notice…within a reasonable time and in such a manner as will allow them to actually seek habeas relief”.

Essentially the migrants in question can be deported, but should get due process beforehand. Pretty clear, right?

Not exactly. The Trump administration continued its immediate deportations, apparently construing the word “reasonable” to mean, well, anything it wants. 24 hours’ notice is “reasonable” for someone to dispute their deportation in court, according to them.

The ACLU argued in a filing that "the notice the government is providing does not remotely comply with the Supreme Court's order. At a minimum, the notice must be translated into a language that individuals can understand. Most importantly, there must be sufficient time for individuals to seek review. As during World War II, that notice must be at least 30 days in advance of any attempted removal."

In a shockingly urgent and rare overnight ruling, the Supreme Court ordered a pause on the deportation of the migrants in question. And the order was just as shockingly terse, clear, and urgent (with the obligatory dissent by Thomas and Alito, of course), which may be a good omen. But it could have avoided such a ruling in the first place if it had used clear language.

Know when to hold ‘em

It’s not a stretch to expect the same Supreme Court that invented new doctrines on insurrection and presidential immunity to offer clearer guidance to the most lawless executive branch in history.

This SCOTUS laid out extensive blueprints for situations when the executive branch needs protection, but now wants to conceal their cards when the executive needs to be reined in.

In a time where the executive branch is scheming to exercise more and more power, the Supreme Court needs to be willing to step in and take it away with clear and plain language, or they will find themselves irreversibly subjected to such power and annihilated under its weight.

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