The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A Tale Of Two Shadow Dockets
The Supreme Court moves heaven and earth to block removal of alleged gang members who are almost certainly removable, but says nothing about Ohio initiative process being declared unconstitutional.
In the span of seventy-two hours, the Supreme Court decided two cases on the emergency docket.
First, by a 7-2 vote, in A.A.R.P. v. Trump, the Court issued an injunction against the "government" to block the removal of a "putative" class of aliens. It did all this even though neither the District Court nor the Fifth Circuit had ruled yet. In fact, had the Supreme Court waited a few more minutes, it would have had an actual decision to review. Now, three days later, the Supreme Court still has not vacated its illegal injunction. I doubt it has any reason to move with alacrity here, since the Supreme Court circumvented the entire appellate process. The Supreme Court begrudgingly took the case away from Judge Boasberg (who is somehow still holding hearings) but the Chief has no interest in letting Texas judges actually decide it.
Second, the Court denied a stay in Yost v. Brown by a 6-3 vote. Here, a federal district court found that Ohio's constitutional amendment process was unconstitutional. A divided panel lifted the stay over Judge Bush's dissent. Justice Kavanaugh entered an administrative stay, but the full Court lifted the stay. Justices Kavanaugh, Thomas, and Alito dissented. There you have it, a federal court found unconstitutional the very process by which the people of Ohio can govern themselves. As a result, the Ohio Attorney General was forced to certify the amendment for the ballot. The question: to end qualified immunity for police officers!
Are these two cases related? Not really. But I do think they speak to the current Court's priorities. The Justices have decided they will move heaven and earth to make sure that alleged gang members, who are almost certainly subject to removal, cannot be removed. Meanwhile, they shrug when lower courts interfere with the democratic processes of a state. Perhaps the removal of the aliens creates irreparable harm. Well, same for amending the state Constitution. It is extremely difficult to unamend a Constitution; and that change affects millions of Ohioans, not just a handful of aliens who are subject to removal. With all regard to Judge Sutton, there will now be one even-more-imperfect solution, through federal courts interference.
It is often said that the Supreme Court follows the headlines. To be clear, the Supreme Court follows the headlines of the mainstream media. There is a never-ending torrent of hottakes about a constitutional crisis. But most Americans will scratch their heads at this issue and wonder why the Supreme Court is giving so much attention to these alleged gang members. During the debate, Donald Trump said that Haitian immigrants in Ohio were eating dogs, and he still won the state by a large margin. Meanwhile, countless other cases whither on the shadow and merits docket, and the people of Ohio have no recourse. The Court does not have its finger on America's pulse--not even close.
As I wrote in the wee hours of Sunday, "I'm glad that the Chief has his priorities straight."
Last year, a bad guy name Zackey Rahimi got hosed at the Supreme Court and no one cared. Remember this colloquy?
John G. Roberts, Jr.: Well, to the extent that's pertinent, you don't have any doubt that your client's a dangerous person, do you?
J. Matthew Wright: Your Honor, I would want to know what "dangerous person" means. At the moment --
John G. Roberts, Jr. Well, it means someone who's shooting, you know, at people. That's a good start. (Laughter.)
Rahimi didn't get any due process, and the Court was utterly uninterested in the issue.
Anyway, I'm pretty sure you can find some "dangerous" people in the Bluebonnet detention facility.
This year, the Chief Justice ridiculed as criminal those American citizen hobbyists who make their own guns.
John G. Roberts, Jr. Just what would -- what is the purpose of selling a receiver without the holes drilled in it? Well, I mean, drilling a hole or two, I would think, doesn't give the same sort of reward that you get from working on your car on the weekends.
In A.A.R.P., there are actual criminals who are in this country illegally, with suspected gang affiliations. All of the sudden, John Roberts turns into the second coming of Earl Warren. Then again, Earl Warren risked a constitutional crisis over integration of public schools. That seems like a weighty goal. John Roberts will wage a constitutional crisis over deporting illegal aliens with alleged gang membership? Will anyone in ten years even understand what this case was about?
The decision to intervene on the shadow docket, no matter what Justice Barrett says, is a reflection of how important a Justice thinks a case is. I don't want to hear a word about "cert-worthiness" ever again. This is an individualized judgment, and the four stay factors are just window dressing. The current members of the Court have now signaled what matters to them.
