The Smug Silence Of The Supreme Court’s Rulings For Trump

What is the sound of the Supreme Court siding with President Donald Trump? Silence.

In two cases on Monday, the Supreme Court sent down orders enabling the Trump administration’s most obvious violations of the law — or, what should be obvious violations — since taking office without saying much of anything at all.

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In one terse order, the court allowed Trump to fire Federal Trade Commission member Rebecca Slaughter without cause, despite a law on the books backed by a 90-year-old precedent saying that he could not. The order did not explain its reasoning, leaving Americans to wonder at how the court had justified overturning what had, until this year, been understood as law.

Then, in a 6-3 ruling, the court’s conservatives blocked a lower court’s ruling preventing federal immigration enforcement officers from engaging in racial profiling in violation of the Fourth Amendment. There was no majority opinion from the six conservatives. They offered no justification or explanation for this.

Since Trump took office in January, the court has increasingly decided huge issues on the shadow docket, where it rules without arguments and often without issuing written opinions.

The court’s silent treatment of pivotal cases authorizing some of Trump’s worst abuses has become routine during his second term. It has only accelerated over the summer, with the court overriding lower courts as it gives Trump the thumbs up. Those lower courts are left with little to no explanation or direction on how to proceed, causing an uproar as judges have spoken out in the press and even been accused of not respecting the court’s opinions by actual Supreme Court justices.

When the court does speak, it doesn’t help much either. Just in the past week, Justice Amy Coney Barrett said that she doesn’t think the U.S. is in a constitutional crisis during her book tour, while Justice Brett Kavanaugh bemoaned the use of the phrase “shadow docket,” instead saying he’d rather reporters call it the “interim docket.

The smug tone has carried beyond public appearances into the actual rulings. Just take a look at Kavanaugh’s concurrence in the case authorizing racial profiling in immigration enforcement.

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The ruling allowed officers to, effectively, racially profile people when targeting them for immigration detention stops: Officers are allowed to consider apparent ethnicity, language spoken, where someone is and what kind of work they do. Kavanaugh swiftly pooh-poohs the idea that immigrants themselves might have a right to not be targeted on the basis of their race: “[T]he interests of illegal immigrants in evading questioning (and thus evading detections of their illegal presence) are not particularly substantial as a legal matter,” he writes.

And when those stopped are documented or U.S. citizens who appear to be of Latin American descent, he says, it shouldn’t be a big deal for them to show their papers.

“[F]or stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U. S. citizens or otherwise legally in the United States,” Kavanaugh writes.

But Kavanaugh is silent on the actual harmful impact of racial profiling as U.S. citizens and noncitizens with legal status are harassed, humiliated, detained and, in some cases, deported. Those without documentation may not just face deportation, but removal to abusive prisons in countries that they are not from and cannot escape.

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In fact, Justice Sonia Sotomayor points this out in her dissent, joined by the other two liberal justices.

She recounts the story of Jason Gavidia, a U.S. citizen, who was approached by masked immigration officers while “working on his car in the tow yard.” After being asked if he is“American at least three times” and stating that he was, “the officers racked a rifle, took Gavidia’s phone, ‘pushed [him] up against the metal gated fence, put [his] hands behind [his] back, and twisted [his] arm.’”

Gavidia was only released after showing his Real ID, which the officers did not return to him.

In cases where abuses occur, Kavanaugh writes that “remedies should be available in federal court.” But Kavanaugh voted with his fellow conservatives to restrict the ability of citizens to sue federal agents for violating their First and Fourth Amendment rights in a 2022 case.

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Then, Kavanaugh tries to justify this decision as just judges applying their neutral judgment by comparing how the court ruled in an immigration case during Joe Biden’s presidency and now.

“Just as this Court a few years ago declined to step outside our constitutionally assigned role to improperly compel greater Executive Branch enforcement of the immigration laws …, we now likewise must decline to step outside our constitutionally assigned role to improperly restrict reasonable Executive Branch enforcement of the immigration laws,” Kavanaugh writes.

Except in that case, U.S. v. Texas, the court did not intervene to overturn a lower court’s injunction on the Biden administration’s immigration policies. Instead, it let them stay in place, blocking Biden’s policies, while arguments continued. It is the exact opposite of what the court has done now. The court is overriding the lower court to allow Trump’s deportation policy to stay in place. 

“Consistency and neutrality are hallmarks of good judging,” Kavanaugh writes.

But the only consistency so far from the Supreme Court during Trump’s second term is that Trump always wins.

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