The Volokh Conspiracy
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Paul Cassell in WSJ: "A Supreme Court Injustice to District Judge" James Wesley Hendrix
"Justice Alito’s dissent gets it right: James Hendrix handled the Alien Enemies Act case commendably."
The Supreme Court's decisions in A.A.R.P. are among the most regrettable orders issued in recent memory. Putting aside the law, the decision unfairly maligned Judge James Wesley Hendrix. I alluded to that charge yesterday. Here, I want to flag a timely Op-Ed by Paul Cassell in the Wall Street Journal, titled "A Supreme Court Injustice to a District Judge."
Here is the introduction:
The Supreme Court held last week that the government needs to provide more notice to alleged alien enemies before deporting them. The 7-2 ruling in A.A.R.P. v. Trump wasn't itself a surprise; the court had already signaled skepticism of the president's use of the Alien Enemies Act of 1798. But in the unsigned opinion, the justices did an injustice to James Wesley Hendrix, the presiding judge in Lubbock, Texas.
The high court accused Judge Hendrix of "inaction"—of failing to act quickly enough and thereby denying the aliens due process. In dissent, Justice Samuel Alito (joined by Justice Clarence Thomas) said this accusation was "unfair" and that "we should commend" the judge's "careful approach." The dissenters are right. Judge Hendrix's service was exemplary. The majority was wrong to malign this judge and sent a disturbing message about procedural norms.
And here is the conclusion:
The Supreme Court has sent a regrettable signal to the lower courts: If a civil-liberties group comes to you with a purported emergency you should issue an immediate order against the government and resolve the details later. This amounts to a one-way ratchet in favor of civil-liberties claims without regard to competing considerations.
Justice Alito's dissent correctly defends Judge Hendrix's deliberation. It stands in contrast with that of other judges, who, as Justice Alito noted, "granted temporary injunctive relief without adequate consideration of the relevant issues." We need more jurists like Judge Hendrix, and the Supreme Court should think more carefully about how its rulings could distort the work of the lower courts.
Cassell, a former District Court judge, is uniquely situated to make this case. I hope more members of the bench and bar are willing to defend a judge who was unfairly attacked. And I hope the Supreme Court will one day realize how this ruling creates perverse incentives for lower courts to issue knee-jerk injunctions, without even having time to consider the issue.
I will have much more to say about this case in due course.
