I Hear a Symphony from the Supreme Dissenters

Decisions of Deception, Rhetorics of Truth, the Fugitive Slave Law, and Trump-v-J.G.G.

The 5-4 Supreme Court decision that gave the Republican Administration permission to continue using the Alien Enemies Act to deport Venezuelans should remove the blinders from any eyes that thought justice and the courts might save us from the lawlessness of this Republican Administration. My evidence is clear - it comes from no less an authority than the dissenting Supreme Court justices in Trump-v-J.G.G.

The case, which should be better known throughout history as the Narcissist against the Anonymous - more properly Trump-v-J.G.G. - concerns the Republican Administration’s seizing of captive Venezuelans to transport them without due process to a notorious El Salvadoran prison, then flouting a lower court’s temporary restraining order against their action. And not just flouting it, but loudly insulting the judge who issued that order, and calling for his impeachment.

Chief Justice Roberts, at the time, had given a mild slap on the wrist to the President for using inflammatory language against Judge Boasberg. But as many predicted at the time, Roberts was simply reminding Trump that the Supreme Court had the President’s back, and that he would get what he wanted without having to terrorize judges. His rebuke turned out to be more of a “don’t play with your food!” than a cease-and-desist order. Of course, this Republican Administration and its base voters get endless sadistic joy out of bullying, terrorizing, and intimidating their perceived enemies, so Roberts’ gentle admonition did not, and will not, slow the Don down.

Let’s go back to the two sentences uttered by Chief Justice Roberts on March 18, 2025:

“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

So he is saying to the Republican Administration - just appeal it to us! Which the Republican Administration does. And in the first sentence of their 5-4 decision, they fulfill the sleight-of-hand promise of Roberts’ heralded March 18th intervention:

“We construe these TROs [the Temporary Restraining Orders placed by Justice Boasberg] as appealable injunctions.”

Chief Justice Roberts doesn’t particularly like Donald Trump as a person. But in the end, he (like many other base Republicans) likes what Donald Trump is doing, and so he remains ready to give the semblance of reasoned disagreement, but also deliver big for the POTUS when he really needs it - like in the immunity decision, and here on immigration. The ruling class ain’t called the ruling class for nothing - they will circle the wagons to protect each other and screw the poor and outcast whenever they can. Q.E.D.

It is no surprise that Roberts came through with the 5-4 majority the Republicans needed to continue their assault on civil liberties with the Trump-v-J.G.G. decision. The language of the majority decision is interesting, if you like that kind of legal hairsplitting. For instance, here’s the concluding paragraph

“For all the rhetoric of the dissents, today’s order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge. For the reasons set forth, we hold that venue lies in the district of confinement. The dissents would have the Court delay resolving that issue, requiring—given our decision today—that the process begin anew down the road. We see no benefit in such wasteful delay.”

Full-on contempt for their colleagues in the minority, who are just spewing “rhetoric” according to the majority. Then the fake crocodile tears about “wasteful delay” without asking whom that delay might benefit - namely, the plaintiffs. No coward in the majority would sign this shadowy decision. I would like to report a crime here: I see five robed men stealing the liberty of three hundred men who are now forced to perform half-naked for Kristi Noem’s theater of terror.

THE WOMEN DISSENT!

The four no votes came from the four women members of the court. That is an important fact of Women’s History! Justices Barrett and Kagan did not write separately, though Barrett carefully indicated those parts of Sotomayor’s dissent with which she agreed. But Sotomayor - who has inherited Ruth Bader Ginsburg’s mantle (collar?) in the fiery nature of her dissents - wrote a lengthy multi-part dissent, and Justice Brown joined her with a sharply worded historical warning in her brief concurring dissent. While I fear the SCOTUS is headed for disaster, these two women are worth watching. They are the women that the patriarchy fears/ed, the genuine result of DIVERSITY of opinion, EQUITY in education, and INCLUSION of multiple perspectives. And bless them, they are WOKE! They are obviously more-than-worthy of their positions, and they use their privilege in the way I suggested recently: to leverage justice for all. The fact that they are women of color only makes their position all the more poignant: they are the highest-ranking people of color whose life-long term of office suggests that they could survive this Republican Administration’s deliberate, planned destruction of America and emerge out the other side. So their principles, and their understanding of what is possible within the limits of the given confines of American law, are important guideposts as WE THE PEOPLE debate what kind of world we seek once these petty tyrants of the Republican Administration tumble to their fate.

In her dissent, Sotomayor calls Roberts out in the explicit/implicit game of legalese:

“The Court’s legal conclusion is suspect. The Court intervenes anyway, granting the Government extraordinary relief and vacating the District Court’s order on that basis alone. It does so without mention of the grave harm Plaintiffs will face if they are erroneously removed to El Salvador or regard for the Government’s attempts to subvert the judicial process throughout this litigation.”

Since Sotomayor knows that Roberts knows that the Republican Administration is working overtime to “subvert the judicial process throughout this litigation,” she needles him with precision, because the Supreme Court that he leads is hiding behind abstractions to provide the Administration with legal justifications.

Having scolded and admonished the Chief Justice, Sotomayor issues a warning to the Republican Administration of the constitutional crisis that has to happen

“To the extent the Government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court.”

I can’t endorse her dire optimism here, since I believe her buddies on the other side of this decision have already made their decision to side with the Administration’s lawlessness, and justify it after-the-fact (which is what Trump-v-J.G.G. does), no matter what comes down the pike. As a professor of Comparative Religion, I know that texts can be used however the authorities want them to be used, and SCOTUS is, if nothing else, the authority, standing in for the author-ities who wrote the Constitution.

Indeed, we need to see what has been obvious for most of this century - that the conservative majority on the SCOTUS is playing footsies with the Executive branch (the Legislative branch is the kid on the playground who never gets picked to the varsity team). Sotomayor, in her pinpoint rhetoric, calls them out for that.

“the majority thinks plaintiffs’ claims should have been styled as habeas actions and filed in the districts of their detention. In reaching that result, the majority flouts well-established limits on its jurisdiction, creates new law on the emergency docket, and elides the serious threat our intervention poses to the lives of individual detainees.”

I wish she hadn’t used the word “elides,” but I can elucidate what she means. She sees the majority hiding behind abstractions, ignoring what they know (and what every American who follows the news knows), that the detainees are in immediate danger of their life, health and sanity, having already been deprived of liberty and anything even distantly akin to the pursuit of happiness. Then, reversing their reversals she says that the Supreme Court majority are the right-wing’s great bug-a-bear - “activist judges” - who create new law (the procumbent incumbents of Congress are supposed to do that).

Not to be outdone - nor intimidated by Kavanaugh’s dismissal of her Reason as mere rhetoric - Sotomayor has not one, but two summary flourishes that speak directly to WE THE PEOPLE even as they castigate her colleagues and the Republican Administration. The most-quoted section in the mainstream press is the one where she raises the specter of “lawless regimes” from the annals of history, and the slippery slope from non-citizens to citizens in terms of the Government’s position. She has seen through their ruse (as have many of us).

“The implication of the Government's position is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this Nation's system of laws is designed to prevent, not enable, their rise.”

Her final words should burn into our souls, even as they constitute a “burn” on both the Republican Administration and their willing accomplices on the Supreme Court:

“The Government’s conduct in this litigation poses an extraordinary threat to the rule of law. That a majority of this Court now rewards the Government for its behavior with discretionary equitable relief is indefensible. We, as a Nation and a court of law, should be better than this.”

We “should be better than this” - the question is, will we be better than this?

Justice Jackson is equal to that challenge. She concurred with everything Sotomayor had written, then added her dissent to criticize the Supreme Court’s “fly-by-night approach.” Justice Jackson won my heart by making her argument one about the necessity for careful deliberation and maintaining the archival trail of full court proceedings. As I have made clear in many other essays, they are coming for the archives, the libraries, the museums, the websites, the books, the universities - anything that might hold knowledge. At least Justice Jackson is attempting to stem that tide within the Supreme Court - but we need to remember that it is happening everywhere. She uses her defense of full proceedings to also commit one of the crimes against the Republican Administration’s propaganda machine - she admits that the country, and specifically the SCOTUS, have made mistakes in the past - citing the 1944 Korematsu v. United States decision upholding the internment of Japanese Americans during World War II (a case that involved the Alien Enemies Act). And the fact that she can cite Korematsu, and understand its logic, is evidence that “at least when the court went off base in the past, it left a record so posterity could see how it went wrong.” And yet…sigh. As with the destruction of the National Archives, the attempted muzzling of the universities and the Smithsonians, and the use of Signal chats for matters of national security, the goal is to leave no trace of the Republican Administration’s historic criminality. And the Supreme Court majority is in on the fix.

The full context of what Justice Jackson says thus indicts both the Republican Administration and her own institution, and in so doing reveals their hand-in-glove operation:

“This fly-by-night approach to the work of the Supreme Court is not only misguided. It is also dangerous. The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning. Surely, the question whether such Government action is consistent with our Constitution and laws warrants considerable thought and attention from the Judiciary. That was why the District Court issued a temporary restraining order to prevent immediate harm to the targeted individuals while the court considered the lawfulness of the Government’s conduct. But this Court now sees fit to intervene, hastily dashing off a four-paragraph per curiam opinion discarding the District Court’s order based solely on a new legal pronouncement that, one might have thought, would require significant deliberation….With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.”

She is ashamed of her colleagues, and wants WE THE PEOPLE to see that the SCOTUS is trying to cover its tracks and remain hidden. It is now not Lady Justice who is blind - the leaders are blinding themselves when they know better, as these justices certainly do. As the Republican Party writ large certainly does. It is all so sordid, but cheers to Justice Jackson for saying what needed to be said, and putting it in the permanent record.

THE FUGITIVE SLAVE LAW

While I am not an expert on all the legal matters pertaining to the Fugitive Slave Law, as an historian of the Abolition movement I do know that at the time it raised many issues parallel to where we are now. Consider this (and I hesitate to include it, for fear of drawing attention to it and leading to its erasure as a result) from the Boston National Historical Park site:

To ease ongoing tensions between northern and southern states, Congress passed a series of laws collectively known as the Compromise of 1850. In a concession to pro-slavery interests, legislators included a new and far more stringent Fugitive Slave Law as part of this legislative package. The new law mandated that freedom seekers be returned to their enslavers without due process. Cases would be determined by newly appointed federal commissioners who received twice as much money if they ruled that a suspected freedom seeker should be returned to their enslaver rather than released. The law empowered federal marshals to enforce it and mandated the compliance and assistance of state and local authorities. Even the public could be deputized to uphold this law. The law also imposed stiff fines and sentences, $1000 and up to six months in prison, to anyone "who shall knowingly and willingly obstruct, hinder, or prevent" the capture of a freedom seekers.

Lack of due process, forced public compliance, and the Supreme Court falling into line with the infamous Dred Scott decision: it’s all there. Culminating in the same abstract voice of the Supreme Court, and Chief Justice Roger Taney, intoning that Black men “had no rights which the white man was bound to respect.”

Apparently, Venezuelans held in immigration detention have no rights that Republicans are bound to respect. While Justice Kavanaugh writes in a brief concurrence that

the Court’s disagreement with the dissenters is not over whether the detainees receive judicial review of their transfers—all nine Members of the Court agree that judicial review is available. The only question is where that judicial review should occur.

This is not only patronizing (and note that it is Kavanaugh who was brave enough to put his name to a concurrence, thereby simultaneously implying that he didn’t write the majority report to which he has concurred, and then this sexist man tries to pretend that the male majority and female minority on the court share a concern about due process? Puleez stop insulting our intelligence, Justice Kavanaugh), it is transparently silly. Because holding hearings on immigration in deep red states is something that historians of the pre-Civil War world have a ready analogy to in the Fugitive Slave Law.

Imagine, if you will, that the Fugitive Slave Law had stipulated that all legal proceedings take place in the courts where the putative owners lived (i.e. slave-holding states). Wouldn’t everyone have seen through that ploy? Instantly? Well, that’s what the Supreme Court just did - it effectively TOLD THE TRUMP ADMINISTRATION WHERE TO SEND DETAINEES PRIOR TO SENDING THEM TO GULAGS ABROAD - send them to states whose judges are prone to agree with the Republican Administration’s inhuman/inhumane proposals. IT IS AS OBVIOUS AS DAY! No detainees targeted for deportation to El Salvador will be housed where sympathetic lawyers or courts might decide in their favor - say, Seattle, or San Francisco, or San Diego. THE SUPREME COURT JUST DID THE REPUBLICAN ADMINISTRATION A SOLID!

The classic - and morally and politically and philosophically correct - response to the Dred Scott decision came from Frederick Douglass:

We are now told, in tones of lofty exultation, that the day is lost, all lost, and that we might as well give up the struggle. The highest authority has spoken. The voice of the Supreme Court has gone out over the troubled waves of the National Conscience, saying peace, be still . . . The Supreme Court of the United States is not the only power in this world. It is very great, but the Supreme Court of the Almighty is greater.

The question devolves to us. For when Douglass gave this great speech about the Dred Scott decision, he had movements for change allied with him - the Abolitionist movement, the Underground Railroad, and the constant revolts of the unjustly enslaved people. So in the ellipses before the statement that ended the excerpt above, Douglass thundered his optimism about the eventual success of human rights:

I have no fear that the National Conscience will be put to sleep by such an open, glaring, and scandalous tissue of lies as that decision is, and has been, over and over, shown to be.

Can we match this now? That is the question of the hour - a question more pressing than the economic pain of the ludicrous tariff and trade war with the universe that the Republican Administration has launched, because this question has to do with the future of human life, rights, and dignity: Can we demonstrate how this thread-bare hasty Trump-v-J.G.G. decision is immoral, anti-human, and no matter how “lofty” it tries to sound, that it will sound the death-knell for American liberty if we allow it to stand? CAN WE DO THAT?

WE MUST.

Our history, our DIVERSE heroes from the Abolitionist, Reconstruction, Progressive, Anti-Imperialist, Labor, Civil Rights, Women’s Liberation, American Indian Movement, LGBTQI Liberation, Black Lives Matter movements - all these amazing strands that continued and expanded the (otherwise self-limiting) American Revolutionary spirit - these many voices, in their full-throated choir, are heard now in Justices Sotomayor and Jackson, but the many of us who took to the streets on April 5th can amplify it and say it with more conviction and diversity!