Sotomayor’s eloquence

I finally had a chance to look carefully at Justice Sotomayor’s dissent from a dangerous, awful shadow docket maneuver by the U.S. Supreme Court in DHS v. DVD, announced yesterday. The case is one concerning due process rights of immigrant-deportees. I wrote extensively about it here.

First, a quick explanation of what the “shadow docket” is. The Supreme Court has a two-track docket system. One, the merits docket is for cases that get full briefing and oral argument — a process that promotes judicial transparency and careful deliberation. The other is the shadow docket, which historically was used to deal with procedural or emergency matters. In these, the court simply issues orders after voting, without briefing or oral argument. For years now, however, the right-wing justices have been using the shadow docket to make what amount to substantive decisions, offering no explanation for these because no opinions are required. See this explainer for more information.

In DHS v. DVD, a federal district court judge issued a set of orders to prevent the Trump regime from deporting immigrants without due process. The case is complicated, involving people sent to Sudan in violation of one of these orders and the removal of a man to Mexico without any opportunity for him to raise fear of torture there or possibility Mexico would send him to a country a court had said the U.S. could not send him to. The district court eventually granted the plaintiffs a temporary injunction, thereby prohibiting removals without due process while the lawsuit proceeded.

The Trump regime appealed. This appeal reached the Supreme Court on the shadow docket, because the Trump regime took the position that the injunction caused it irreparable harm, and so should be stayed. Note that the federal district court had addressed this argument from the Trump regime, explaining that there was no irreparable harm to the government in requiring it to accord due process to those it was deporting while the litigation was pending. The irreparable harm that mattered, said the district court, was to people who were being removed to places where they might well be killed or tortured without ever having a chance to object and be heard by a tribunal.

Yesterday, in 6-3 order, the Supreme Court granted the stay, green-lighting deportations without due process while the case is litigated. Because this was on the shadow docket, the right-wing justices did not write any opinions explaining their votes. But Sotomayor wrote a truly important and eloquent dissent from the majority’s order.

The opening sentences:

In matters of life and death, it is best to proceed with caution. In this case, the Government took the opposite approach. … 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. I cannot join so gross an abuse of the Court’s equitable discretion.”

Next, Sotomayor efficiently and expertly lays out the relevant law and the facts of the dispute so far, including all the Trump regime’s noncompliance with judicial orders. This is how a dissenting Supreme Court Justice makes sure all this information is on the Supreme Court’s official record.

In the rest of her dissent, Sotomayor performs the analysis required by precedent when a court decides whether to grant a request for extraordinary emergency relief, e.g. an emergency request for a stay of a district court’s preliminary injunction. I won’t go into the details. The most noteworthy portion of these sections concerns a request for such relief from a party with “unclean hands.”

When a party asks for a stay like the one requested by the Trump regime, it is asking the court for “equitable relief” — a request that the court act not as a matter of law, but to prevent a serious injustice. Equitable relief is an exceptional ask and as Sotomayor notes, centuries of precedent “‘close the doors’ equity to those ‘tainted with inequitableness or bad faith relative to the matter in which [they] see[k] relief.’” (Citations omitted.)

In short, courts deny equitable relief to parties who have acted in bad faith, parties with “unclean hands.”

The Trump regime’s bad faith throughout the lower court’s handling of the case should have been the end of the matter. Sotomayor: ‘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.’” That principle is a bedrock of the rule of law. The Government’s misconduct threatens it to its core.’ (Citations omitted.) She continues, “So too does this Court’s decision to grant the Government equitable relief. This is not the first time the Court closes its eyes to noncompliance, nor, I fear, will it be the last. See Trump v. J. G. G., 604 U. S. ___ (2025) (per curiam). Yet each time this Court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law.”

The conclusion of the dissent is equally powerful as the opening.

The Due Process Clause represents “the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 646 (1952) (Jackson, J., concurring). By rewarding lawlessness, the Court once again undermines that foundational principle.’ Apparently, the Court finds the idea that thousands will suffer possibility that a District Court exceeded its remedial powers when it ordered the Government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled. That use of discretion is as incomprehensible as it is inexcusable.

There really isn’t anything left for me to add.