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THE SUPREME COURT PICKS TRUMP OVER THE RULE OF LAW  
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Matt Ford
June 25, 2025
The New Republic
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_ The high court has dealt a savage blow to due process and has
rewarded the administration for defying court orders. _

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The Supreme Court dealt a severe blow to the American rule of law on
Monday night by clearing the way for the Trump administration to
deport migrants and other noncitizens to random countries where they
have no ties or connections, effectively rewarding the White House for
its defiance of court orders to the contrary.

Federal judges in the lower courts had previously blocked the
administration from carrying out such removals by citing the Fifth
Amendment’s due process clause. The plaintiffs and the courts cited
evidence that the government had provided little to no notice to
noncitizens facing such removal and had ignored federal law that gives
them an opportunity to challenge it. To make matters worse, the
administration continued to carry out the removals even after a court
order barred them from doing so.

Without any explanation, however, the high court sided with the Trump
administration and stayed the lower court orders until further notice,
in a 6–3 decision. The conservative majority’s intervention will
allow the administration to carry out further removals to countries
like Libya and South Sudan, despite the ongoing legal challenges—and
despite the White House’s own misconduct.

“Rather than allowing our lower court colleagues to manage this
high-stakes litigation with the care and attention it plainly
requires, this court now intervenes to grant the government emergency
relief from an order it has repeatedly defied,” Justice Sonia
Sotomayor wrote in a dissenting opinion, which was joined by the
court’s other two liberals. “I cannot join so gross an abuse of
the court’s equitable discretion.”

_Department of Homeland Security v. DVD
[[link removed]]_ involves
a group of migrants facing removal from the United States by the Trump
administration. (DVD is the abbreviated name of one of the anonymized
plaintiffs.) Federal law lays out the hierarchy of countries to which
someone can be deported from the United States. It starts with the
country from which they originally arrived. Then, if that country is
not feasible, the list goes through nearest alternatives like their
birth country, where they hold citizenship, and so on.

What happens if none of those places are feasible? Only then can the
government conduct what is known as a third-country removal, where
they effectively send the noncitizen to a country where they have no
relevant ties or connections. This is an extraordinary step, and
federal law only allows it after exhausting every other option. In the
1990s, Congress also incorporated portions of an anti-torture treaty
to forbid the executive branch from sending someone to a country where
they would likely face torture or similar degrading treatment. Anyone
facing removal is entitled to challenge it on those grounds.

The Trump administration does not really care about any of this. Its
goal is to remove as many noncitizens from the country as possible. It
wants to carry out that mission as quickly as possible and as easily
as possible, and it has chafed at the legal and constitutional
constraints that stand in its way. Among the plaintiffs in this case,
for example, is a gay Guatemalan man who had been illegally deported
by the Department of Homeland Security to Mexico, where he had been
previously raped, before the Trump administration returned him to the
United States after his lawyers asked the court to intervene.

The plaintiffs asked a federal judge in Massachusetts to block DHS
from carrying out further third-country removals unless it provided
appropriate notice—in the Guatelaman man’s case, DHS only informed
of his removal to Mexico after he had been placed on the bus
there—and gave the migrants a “meaningful” chance to challenge
that removal on the grounds that they could face a credible risk of
torture or mistreatment. The judge granted their request and imposed a
temporary restraining order, or TRO, on those grounds while legal
proceedings continued.

As expected, the Trump administration appealed the TRO to the First
Circuit Court of Appeals, which is considering its merits. It also
asked the Supreme Court to lift the TRO while litigation is ongoing.
At the same time, the administration also took aggressive steps to
circumvent and defy the order. The Guatemalan man and three other
named plaintiffs were flown to a prison in El Salvador, where the
Salvadoran government is holding them at the Trump administration’s
request. Federal judges later blocked further removals to CECOT, but
DHS refused to turn around planes that were already in the air.

In May and June, the government also removed nearly two dozen other
migrants who were allegedly covered by the TRO to third countries like
Libya and South Sudan, only for federal courts to intervene there as
well after their lawyers caught wind of the plans. “Short of the
noncitizens ‘yelling at any of the jailers that they were afraid to
go to South Sudan’ (as the district court put it), DHS did not offer
the noncitizens an opportunity to assert a claim under the Convention
[Against Torture],” Sotomayor noted in her dissent.

They had good reason to be afraid. Libya has been governed by two
rival provisional governments since a civil war after the collapse of
Muammar Qaddafi’s regime more than a decade ago. While active
warfare has largely ended since a 2020 ceasefire, there are still
occasional bouts of violence and unrest. South Sudan, the world’s
newest country, has struggled with famine, civil war, and armed ethnic
conflicts since it became fully independent in 2011.

To understand the full impact of this case, it is important to know
the precise question that the Supreme Court was answering in it. When
a federal district court judge issues a temporary restraining order in
any litigation, the Supreme Court weighs multiple factors when
deciding whether it would be appropriate. One of them is whether a TRO
would prevent “irreparable harm” to one side. That prevents one
side from mooting the case by taking irreversible steps that a court
could not later remedy. Another factor is whether the plaintiffs are
“likely to succeed” on the merits. That prevents the courts from
acting frivolously or unnecessarily.

The default assumption, at least according to the Supreme Court’s
own precedents, is that the justices will rarely grant a stay out of
deference to the lower courts. Sotomayor argued that the government
had not done so here, even though the court failed both of those
tests. On the irreparable harm question, she noted that the Trump
administration had made the “facially absurd contention” that it
is harmed “any time a court orders it temporarily to refrain from
doing something it would like to do.”

That is apparently enough to suffice, however, since Sotomayor’s
colleagues in the majority “ to give no serious consideration to the
irreparable harm factor” in Trump-related shadow docket cases these
days, she said. If anything, Sotomayor pointed out, it is the
plaintiffs and those like them who face irreparable harm here if they
are sent to a strange country on a different continent that lacks the
rule of law and suffers from endemic violence.

On the likelihood-of-success question, Sotomayor had even greater
contempt for the Trump administration’s arguments. “Given its
conduct in these proceedings, the government’s posture resembles
that of the arsonist who calls 911 to report firefighters for
violating a local noise ordinance,” she wrote. Indeed, she noted,
courts are supposed to decline to intervene like this in cases under
the “clean hands” doctrine, which counsels courts to deny this
kind of relief to litigants who don’t act in good faith.

“The government thus openly flouted two court orders, including the
one from which it now seeks relief. Even if the orders in question had
been mistaken, the government had a duty to obey them until they were
‘reversed by orderly and proper proceedings,’” Sotomayor
explained, quoting from precedent. “That principle is a bedrock of
the rule of law. The government’s misconduct threatens it to its
core.”

Sotomayor’s version of events is persuasive. (It is among her
strongest dissents I can recall.) If the Supreme Court’s
conservative majority has any counterarguments, it did not offer them.
Shadow docket cases like this one are supposed to be ones in which
time is of the essence, so the majority is not required to explain its
reasoning in a written opinion. That may be understandable when the
court is dealing with, say, frivolous requests for intervention where
explanation is not warranted or ticking-clock petitions in
death-penalty cases where it would be counterproductive. It is less
conscionable when the court is effectively nullifying U.S. treaty
obligations and the provisions in federal law that incorporate them.

In some cases, a justice from the majority will attach a concurring
opinion to further explain their approach to the case, but none of the
six in the majority did so here. They had ample opportunity: Briefing
was completed on June 5, and the court did not issue its order until
June 23. (That delay alone disproves the administration’s claims
that emergency relief was necessary.) Even though June is the
court’s busiest month, Sotomayor still found the time to write a
powerful 19-page dissent. The court instead overrode its colleagues in
the lower courts by pure fiat.

This is not how things are supposed to work. Under the Constitution,
federal courts have neither the power of the purse nor the power of
the sword. The judicial power instead rests the power of reason—or,
more bluntly, on the public confidence that they are correctly
interpreting the law. Courts bolster that power by explaining their
decisions in writing, by explaining how they reached their
conclusions, and by proving to Americans that they are acting in
accordance with law and precedent.

The Supreme Court’s habit of effectively resolving major cases on
the shadow docket with little or no explanation is not new, nor has it
gone uncriticized by legal scholars or court watchers. Monday’s
ruling is nonetheless a major escalation in its approach. Using these
types of cases to reward presidential lawlessness without even the
pretense of an explanation is a dangerous frontier for the
conservative justices. It contributes to the growing public perception
that their rulings are arbitrary and partisan.

“This is not the first time the court closes its eyes to
noncompliance, nor, I fear, will it be the last,” Sotomayor warned.
“Yet each time this court rewards noncompliance with discretionary
relief, it further erodes respect for courts and for the rule of
law.” Even if the justices think they are staving off further
institutional damage by avoiding direct conflict with the Trump
administration, that strategy can only backfire. Not only would it
show that the court cannot decide high-stakes cases without fear or
favor, it would only encourage future presidents to adopt similar
tactics to receive similar concessions. If the court has thought
through its current course of action, then it has not shown its work.

_Matt Ford is a staff writer at The New Republic._

* Supreme Court
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* Due Preocess
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* Deportation
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* Trump and The Supreme Court
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