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The image shows Justice Sam Alito and, in the background, U.S. Supreme Court Associate Justice Sonia Sotomayor engaged in a discussion with Knight Foundation President Maribel Pérez Wadsworth in Miami on Tuesday, February 11, 2025 (according to AP Photo by Lynne Sladky).
On late Thursday, the U.S. Supreme Court allowed the Trump administration to proceed with the deportation of eight individuals to South Sudan. Interestingly, these men are not Sudanese citizens; they are currently held at a U.S. military base in Djibouti, a country in East Africa.
The court’s decision resulted from a government request for clarification. A majority of the justices agreed to elaborate on an earlier stay order in the case. This previous stay had nullified an injunction that U.S. District Judge Brian Murphy, appointed by Joe Biden, had issued in late April, as stated in the court’s findings.
In the case stylized as DHS v D.V.D. Murphy and the government have long been at odds. After the lower court issued its injunction barring third-country deportations, the government moved for a stay with the nation”s high court in late May. A majority granted the stay in late June.
Somewhat undeterred, however, Murphy said the stay had no effect on a remedial order the district court issued after finding the government had repeatedly violated multiple court orders.
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The majority makes short shrift of the dispute.
“Our June 23 order stayed the April 18 preliminary injunction in full,” the opinion reads. “The May 21 remedial order cannot now be used to enforce an injunction that our stay rendered unenforceable.”
Writing in dissent, Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, scorned her colleagues for the decision.
The dissent begins with a statement of principles and paeans to the rule of law that read almost like an exercise in dramatic irony.
“The United States may not deport noncitizens to a country where they are likely to be tortured or killed,” Sotomayor writes. “International and domestic law guarantee that basic human right. In this case, the Government seeks to nullify it by deporting noncitizens to potentially dangerous countries without notice or the opportunity to assert a fear of torture. Because the Fifth Amendment, immigration law, federal regulations, and this Court’s precedent unambiguously prohibit such no-notice deportations, a Federal District Court issued a classwide preliminary injunction barring the Government from removing noncitizens without notice and adequate process.”
But those legal protections and standards have proven unavailing – or at least unconvincing – to the Trump administration.
“The Government appealed, and pending its appeal repeatedly violated the District Court’s order,” Sotomayor notes.
The dissent and the district court are on the same page.
In the case itself, Murphy has repeatedly rebuked the government – reiterating and clarifying orders; certifying the class to broaden the scope of relief – after planes full of immigrants were sent to El Salvador on two separate occasions in violation of another judge’s orders. Later, the government attempted a similar flight to Libya – but abandoned that effort at the eleventh hour and returned several immigrants to detention. After that, the government actually put a plane in the air bound for South Sudan – only to stop in Djibouti.
Sotomayor assails the government and the majority for what she views as the paucity of the process that resulted in the stay.
The dissent notes that the government cited several legal arguments in their stay application – which Sotomayor rubbishes as “a kitchen-sink approach.” But it is not clear which argument held the day because the majority granted the stay “[w]ithout citing any of these arguments, or indeed providing any legal justification.”
“Now, the Government returns for more,” Sotomayor complains. “Following this Court’s unreasoned stay of the original preliminary injunction, the District Court issued a minute order explaining that its remedial order (which the Government did not appeal, and whose validity this Court therefore did not consider) remained in effect. Rather than complying with the remedial order, the Government immediately returned to this Court, purporting to seek ‘clarification’ of the stay.”
The dissent lays out what the case means in real terms:
What the Government wants to do, concretely, is send the eight noncitizens it illegally removed from the United States from Djibouti to South Sudan, where they will be turned over to the local authorities without regard for the likelihood that they will face torture or death. Because “‘the Fifth Amendment entitles aliens to due process of law’ in the context of removal proceedings,” the Government’s no-notice removals are undoubtedly illegal. In simple terms, the Government requests that the Court remove an obstacle to its achieving those unlawful ends. That obstacle, again, is the District Court’s remedial order, which it issued to resolve the Government’s violations of the preliminary injunction this Court later stayed. The Government now asks this Court to hold that the stay invalidated the remedial order.
To hear the Sotomayor tell it, the government’s latest request for relief “has nothing to do with clarification” but is, rather, a dispute over the merits of the remedial order. And in lodging such a dispute, the dissent notes, the government entirely leap-frogged the lower courts.
The dissent singles out Justice Samuel Alito for apparent inconsistency in regard to the process required for such quick relief.
Again, Sotomayor, at length:
Although Members of today’s majority have previously insisted that “this Court should follow established procedures” when granting emergency relief, A. A. R. P., 604 U. S., at ____ (ALITO, J., dissenting) the Court now ignores its Rules to grant the Government its desired “clarification” immediately. The majority suggests (relying on an argument the Government did not make) that a remedy for civil contempt is not enforceable when the underlying injunction has been stayed. Perhaps that should be the rule, but the question appears to be a matter of first impression in this Court.
The dissent also takes aim at the majority itself – and the Trump administration – for the general manner in which the case has been handled with each successive court’s ruling.
“Any suggestion that the District Court failed to carry ‘into execution’ this Court’s mandate (which said no more than that the Government’s application was ‘granted’) is patently inappropriate,” Sotomayor goes on. “That the Government accuses the District Court, whose orders it has consistently ignored, of ‘unprecedented defiance,’ is more extraordinary still. Even now, the Government seeks to defy this Court’s clear holdings that it must afford noncitizens with due process of law before removing them.”
The dissent goes on to muse that the lower court is likely still left wondering what to do because the majority’s stay contained no legal analysis or instructions for a remand.
“Perhaps the majority hopes that, in light of its contentless stay order, the District Court will simply give up on adjudicating this case,” Sotomayor continues. “But if this Court wishes to permit the Government to flout the fundamental rights guaranteed by the Due Process Clause, it cannot avoid accountability for that lawlessness by tasking the lower courts with inventing a rationale. The Court’s continued refusal to justify its extraordinary decisions in this case, even as it faults lower courts for failing properly to divine their import, is indefensible.”
The dissent takes one final jab at the majority in closing.
“Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial,” Sotomayor concludes. “Respectfully, I dissent.”
