The Supreme Court Finally Takes On Trump
In an
overnight ruling, the Justices defended the rule of law. Will their toughness
last?
By Ruth Marcus
April
21, 2025
The most heartening, and maybe most
important, event of the Trump Administration so far arrived just before 1 A.M., on Saturday, in the form of
an unsigned order from the Supreme Court. The order—responding to an emergency
request to prevent the immediate removal of Venezuelan migrants—was
gratifyingly unambiguous. “The Government,” it said, “is directed not to remove
any member of the putative class of detainees from the United States until
further order of this Court.”
Thank God for the Supreme Court. This
is not a sentence that I have been accustomed to typing in recent years—not
since President Trump, during his first term, engineered a six-Justice
conservative super-majority. But, at a time when the legislative branch has
been shamefully supine and the public has been alarmingly complacent, the
federal courts represent the last best hope—at least, until the midterm
elections—of combatting Trump’s outrages against the Constitution.
Lately, the federal judiciary has
responded with impressive speed and fortitude to Trump’s fusillade of executive orders and other actions. Judges
across the country—appointed by Democratic and Republican Presidents alike,
even Trump himself—have rebuffed the Administration on its attempt to eliminate
birthright citizenship, its effort to bar trans people from serving in the
military, its crackdown on law firms whose attorneys and clients Trump
dislikes, the moves by the Department of Government Efficiency to obtain
personal information stored in government databases, and more. Though the
courts have not invariably ruled against Trump, the Administration’s record so
far is, to use one of the President’s favorite words, sad.
But it was not at all clear—in fact,
it was disturbingly uncertain—how the Supreme Court would respond to this
onslaught of cases. The conservative Justices may not all be fans of this
particular President, but they are generally inclined to an expansive view of
executive power. This is the Court that just last year gave us Trump v. United
States, with its inflated concept of Presidential authority and extensive grant
of Presidential immunity from criminal prosecution. And, in the few cases
challenging Trump’s executive orders that have made their way to the Court, its
messages have been repeatedly—and, I believe, deliberately—muddled. The
Justices give and they take, sometimes within the same opinion, as in the case of Kilmar Armando Abrego Garcia, the
Salvadoran man who was deported to a prison in his home country in what the
Administration admits was an error. Earlier this month, the Court said that an
order by a federal judge “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.” Then it left a loophole big enough for the Trump Administration to
disregard the directive, making a distinction between whether the lower court
could order the Administration to “effectuate” Abrego Garcia’s return or merely
“facilitate” it, and instructing the lower court to “clarify its directive,
with due regard for the deference owed to the Executive Branch in the conduct
of foreign affairs.”
Similarly, in an earlier chapter of
the dispute that resulted in the Abrego Garcia order, over the use of the Alien
Enemies Act to send Venezuelan migrants to a notorious Salvadoran prison, the
Court found that those detained under that order “must receive notice . . .
within a reasonable time and in such a manner as will allow them to actually
seek” court review. But it also said that the migrants had brought their cases
to the wrong place (the District of Columbia, rather than Texas, where they
were being held) and in the wrong legal form, sparking an angry dissent from
the liberal Justices, which was joined in part by Justice Amy Coney Barrett.
“The Government’s conduct in this litigation poses an extraordinary threat to
the rule of law,” Justice Sonia Sotomayor wrote, joined by Justices Elena Kagan
and Ketanji Brown Jackson.
Now, finally, clarity plus backbone.
What happened? In all likelihood, the Trump Administration’s behavior became
too much for the Court to ignore—that is, with the exception of Justices
Clarence Thomas and Samuel Alito, who dissented. In the first phase of the
case, the liberal Justices had no difficulty recognizing what the
Administration was up to, with its clandestine effort to rush the Venezuelan
detainees out of the country before courts could intervene, followed by its
flouting of a court order to have the planes carrying them return to the United
States. Yet the Administration persisted with its disobedient, if not
contemptuous, behavior. Attorney General Pam Bondi, in the Oval Office with
Trump and the Salvadoran President, Nayib Bukele, last week, misstated the
Court’s ruling in the Abrego Garcia case. (“The Supreme Court ruled that if El
Salvador wants to return him . . . we would facilitate it: meaning, provide a
plane,” she said.) In that same meeting, Stephen Miller, a White House deputy
chief of staff, falsely claimed that the ruling was a nine-to-nothing win. By
then, Administration lawyers had returned to the lower court to argue that all
the Justices meant by “facilitate” was “taking all available steps to remove
any domestic obstacles that would otherwise impede the alien’s
ability to return here.” In other words, the government was doing nothing. The
Justices, most of them, must now understand: we are not dealing with an
Administration that deserves the benefit of the doubt. And so, when A.C.L.U.
lawyers raced to the high court with an emergency petition indicating that
another group of Venezuelan migrants was receiving the scantiest semblance of
due process—notices of removal in English only, with no information about how
to contest designations as “enemy aliens” and no suggestion that there was any
opportunity for judicial review—their pleas had new resonance. The ensuing
1 A.M. order represented
the Administration reaping the results of its own bad-faith arguments and
behavior with the Court.
Except, of course, for the two most
Trump-inclined Justices. Alito, in a dissent joined by Thomas, accused the
majority of providing “unprecedented and legally questionable relief.” In a
particularly disingenuous passage, Alito quoted a government lawyer who assured
a lower court that no deportations were planned for Friday or Saturday. In
fact, Deputy Assistant Attorney General Drew Ensign had said, “I’ve spoken with
D.H.S. They are not aware of any current plans for flights tomorrow, but I have
also been told to say that they reserve the right to remove people tomorrow.”
That is hardly comforting, especially considering that the government’s
position is that once detainees are out of the country, they’re out of luck.
Still, even Alito took pains to note the government’s responsibility. “Both the
Executive and the Judiciary have an obligation to follow the law,” he wrote.
The Court “should follow established procedures,” and the Administration “must
proceed under the terms of our order” requiring due process for Venezuelans
whom the Administration claims are “enemy aliens.” It is hard to see how even
Alito and Thomas could argue that the Administration was faithfully following
the Court’s instructions in its lead-up to a new round of deportations. It had
people loaded on buses headed for the airport when the lawyers filed their
request for emergency intervention.
Maybe I am being overly optimistic
here. This could be the high-water mark of the Supreme Court’s resistance. The
Justices have disappointed before and no doubt will again. And in the
Venezuelan case, the protection the Court granted isn’t permanent—it will last
only “until further order.” But after weeks of mixed and muted messaging, the
Court has spoken, finally, with clarity and strength, in support of the rule of
law. We should take heart that at least one branch of government has the
courage to do so. ♦
