Not Quite Sure What to Make Of This

The Supreme Court issued an injunction prohibiting the deportation of any more people to El Salvador.

This is a bit of a surprise, albeit a pleasant one, because I thought that the court was too busy prostituting itself to Trump and his Evil Minions™.

What did surprise me is that the court issued its ruling at 1 am Saturday morning, and did so before Justice Scalito could finish writing his dissent.

Late night rulings are unusual.  Issuing a ruling before the dissent is finalized?  I cannot recall when this has been done before.

Also, the moved with blistering speed, jumping the line in front of the 5th Circuit appellate court, and they did so before the DoJ had a chance to respond.

It's pretty clear that a majority of the justices, only Alito and Thomas dissented, did not trust the Trump administration not to change the facts on the ground before they issued their ruling:

Shortly before 1 a.m. on Saturday, the Supreme Court issued an emergency order halting the Trump administration’s reported efforts to fly Venezuelan migrants to an El Salvador prison before they could challenge their deportation. The court’s late-night intervention is an extraordinary and highly unusual rebuke to the government, one that may well mark a turning point in the majority’s approach to this administration. For months, SCOTUS has given the government every benefit of the doubt, accepting the Justice Department’s dubious assertions and awarding Trump immense deference. On Saturday, however, a majority of justices signaled that they no longer trust the administration to comply with the law, including the court’s own rulings. If that is indeed the case, we are likely careening toward a head-on conflict between the president and the court, with foundational principles of constitutional democracy hanging in the balance. 

 SCOTUS’s emergency order in A.A.R.P. v. Trump arose out of the government’s unlawful efforts to ship Venezuelan migrants to a Salvadoran prison by invoking the Alien Enemies Act of 1798. On Thursday, lawyers for these individuals told a federal court that the government was preparing to summarily deport them to El Salvador, where they would be indefinitely confined at a notorious detention center. A federal judge in the Southern District of Texas had already blocked their removal—but the government sought to evade this order by busing the migrants into the Northern District of Texas, where the restraining order would not apply. It then gave these migrants “notices,” in English only, declaring that they would be deported immediately, without stating that they could contest their deportations in court. (Officials refused to give these notices, or any other information, to the migrants’ lawyers.) The government intended to fly them out of the country within 24 hours, according to court filings. 

………

There are three remarkable aspects of the court’s decision. First, it acted with startling speed—so quickly, in fact, that it published the order before Alito could finish writing his dissent; he was forced to note only that a “statement” would “follow.” It is a major breach of protocol for the Supreme Court to publish an order or opinion before a dissenting justice finishes writing their opinion, one that reflects the profound urgency of the situation. Relatedly, awkward phrasing in court’s order may imply that Alito—who first received the plaintiffs’ request—failed to refer it to the full court, as is custom, compelling the other justices to rip the case away from him. No matter what, exactly, happened behind the scenes, it’s clear that a majority would not let Alito hold up speedy action. It also acted before the U.S. Court of Appeals for the 5th Circuit had a chance to step in, and before the Department of Justice had an opportunity to respond to the plaintiffs. These highly abnormal moves also reveal a desire to act fast.

Second, it is plain as day that the Supreme Court simply did not trust the Trump administration’s claims that it would not deport migrants over the weekend without due process. If the court did believe these representations, it would not have acted in such a rapid and dramatic fashion; it could have waited for the lower courts to sort through the matter, confident no one would face irreparable harm in the meantime. The majority’s decision to wade in straightaway points to a skepticism that the Justice Department was telling the truth. It’s damning, too, that the majority did not even wait for DOJ to file a brief with the court before acting. The only plausible explanation for the court’s order is that a majority feared the government would whisk away the migrants to El Salvador if it did not intervene immediately. That fear is well-grounded, since we now have substantial evidence that the government lied to a federal judge last month to thwart a court order stopping deportation flights.

Also the fact that the DoJ fired one of their career attorneys for telling the truth in about the abduction and rendition of Kilmar Abrego Garcia may have had something to do with this as well.

I am not sure if this is a one time hiccup, or if the court is beginning to feel their prerogatives as the Supreme Court are being ignored by the Trump administration, or that they (7 of them anyway) actually feel that Trump's behavior is a threat to the constitutional order.

Nice to see a brush-back pitch in any case.