Slate Senior Editor Dahlia Lithwick and legal writer Mark Stern say there may be a reckoning underway among the conservative majority of the U.S. Supreme Court.
The U.S. Supreme Court on Monday temporarily blocked the Trump administration from moving forward with plans to deport roughly 6,000 Syrians and 350,000 Haitians who were granted Temporary Protected Status (TPS) by Presidents Obama, Biden, and Trump himself in his first administration, which is a contradiction to conservatives’ apparent eagerness to give President Donald Trump his way on the shadow docket while the case plays itself out in court.
Stern said it was the right thing to do because federal statute “does not allow the secretary of homeland security to prematurely end a TPS designation before it expires.”
But, more directly, the court’s decision not to quietly give Trump his way as the case plays out “reflects that maybe the court could be conceding” to liberal Ketanji Brown Jackson’s arguments in past dissents when the court allowed Trump to do things like fire protected federal employees before a court decision was made.
In past dissents, Jackson argued that cases must also be considered on the base of who faces irreparable harm, and that immigrants are the ones who face irreparable injury and grievous harm if TPS is stripped, while the Trump administration couldn’t point to one single hardship it would face by keeping TPS in place for a few months.
“The previous two times around, the rest of the court — or at least the conservative justices — pretty much ignored her. But maybe this time they listened because they did exactly what she had counseled, which was to keep TPS in place and set this case for arguments and decision the right way so everybody’s claims will be deliberated on property,” said Stern.
Lithwick also noted that at a Monday event, attended by lower court judges and lawyers, Jackson called out conservative justice Brett Kavanaugh to his face, arguing that the “uptick in the court’s willingness to get involved with cases on the emergency docket is a real unfortunate problem.”
Kavanaugh argued that the rise in emergency cases was partly because presidents are eager to push policies thwarted by a gridlocked Congress, and called Brown’s criticism of the court’s emergency docket unfair, given that the court must rule one way or the other on whether to grant or deny those cases.
CNN reports he also questioned the “short memories” of some of the court’s critics, noting that the Biden administration also regularly appealed cases when lower courts shut down its policies.
But that provoked Jackson to respond that “Brett will remember that when we clerked some 20 years ago, this was not the Supreme Court’s stance, that just because these motions were filed the court actually had to entertain and grant them on their merits.”
US District Judge Paul Friedman — who had broached the topic of the supreme court’s abuse of the emergency docket — then turned to Kavanaugh and asked him if he wanted to offer a rebuttal.
“Ketanji states it well,” Kavanaugh said, adding that “you have to have the same position, no matter who’s president.”
Stern noted there was applause in the room that day.
“It’s a fight over just how much disrespect the Supreme Court is going to show to the lower courts as they try to do their jobs under immense pressure and constant fierce criticism and slander from the leader of the country and many of the politicians in his party,” said Stern, arguing that every time the Supreme Court’s conservative majority quietly erases lower court’s decisions in the shadow docket they are disrespecting the lower courts that are the ones who are “actually on the front lines of these cases.”
“Shaming her colleagues into doing the right thing seems to be her MO, and, based on the court allowing TPS to remain in place so far, may suggest that it might be working and she should be keeping the pressure on,” Stern said.