Leah Litman
Appearances
Pod Save America
Trump's Justices Turn On Him
So that is just on hold until further action by the D.C. Circuit.
Pod Save America
Trump's Justices Turn On Him
It is, as we say on Strict Scrutiny, just total fuck shit, right? Like, you are not ordinarily supposed to be able to appeal a ruling that does nothing, that is not final, that leaves additional things to be determined.
Pod Save America
Trump's Justices Turn On Him
And Judge Boasberg, as you note, didn't hold anyone in contempt, and he held out the possibility that he would never hold anyone in contempt so long as the government returned people from El Salvador. So I don't know what the F the D.C. Circuit panel thought that they were pausing, but obviously the prospect of holding the Trump administration accountable –
Pod Save America
Trump's Justices Turn On Him
under the law was just too galling for them to note, and they had to take a pause over that one.
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Trump's Justices Turn On Him
That's true, although the president can issue a preemptive pardon here before any criminal prosecution would begin. And it's possible, and I think even likely, that in the event the president did that, I don't really see the federal courts then trying to go back and say, well, even though he basically pardoned the offense up until this date, that offense has continued.
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Trump's Justices Turn On Him
I think there would be difficult questions about whether it is indeed a new offense, and my guess is the federal court would probably stand down in that situation.
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Trump's Justices Turn On Him
Short answer, yes. You know, I think at minimum, it evinces a sense that the seven justices in the majority aren't willing to take the Trump administration at their word because, of course, the Trump administration was saying, well, we're giving these guys like reasonable time and reasonable notice to file their challenges when obviously they weren't.
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Trump's Justices Turn On Him
And the administration has basically been thumbing their nose at the Supreme Court's directive and Judge Sinis's order to to bring back Mr. Abrego Garcia. And so I think the Supreme Court looked at all of that and realized, look, the prospect of the government shunting these people off to El Salvador and then never bringing them back is so real and the harm is so profound.
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Trump's Justices Turn On Him
We need to order a halt until we figure out what is going on and whether the administration is indeed providing the individuals with the notice that we said was required in our previous decision.
Pod Save America
Trump's Justices Turn On Him
No. One is that's basically the point in Justice Alito's dissent. He says, you know, we should assume that the Trump administration is going to comply with our previous order directing them to provide reasonable time and notice. And he faults the seven justices who halted the deportations for not doing so. And I just want to kind of pause on the irony that.
Pod Save America
Trump's Justices Turn On Him
The Supreme Court basically did in this case what they faulted Judge Boasberg for doing previously, namely halt on a wholesale basis a bunch of deportations rather than requiring every individual to challenge deportation. their deportation themselves.
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Trump's Justices Turn On Him
And I think that underscores what we were talking about, which is the Supreme Court realized the error of their ways, that there actually needs to be this wholesale pause because if there isn't, the government is just shuttling people around between jurisdictions trying to find some court somewhere that will allow them to expel these people without due process.
Pod Save America
Trump's Justices Turn On Him
Yeah. So he basically faults the court for not adhering to their normal process. And the things he points out the court did were, one, to grant this pause in deportations before waiting to hear the government's response is one thing. Second is the Supreme Court acted by halting the deportations before waiting for the U.S.
Pod Save America
Trump's Justices Turn On Him
Court of Appeals, the intermediary court between the trial court and the Supreme Court, to act on the request to halt the deportations. And so those are two kind of abnormal procedural moves the seven justices made that Justice Alito says, what reason is there to do that? But the reality is, of course, we're not dealing with ordinary circumstances.
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Trump's Justices Turn On Him
So you need to adapt in those circumstances where, again, it looks like the administration is trying to evade any prospect of judicial review by just quickly expelling individuals without any prospect of judicial oversight.
Pod Save America
Trump's Justices Turn On Him
That has happened before. It happens in some courts of appeals, and it does sometimes happen in the Supreme Court. It's exceptionally unusual.
Pod Save America
Trump's Justices Turn On Him
And honestly, a part of me read into this the idea that not only do the seven justices think that the Trump administration might be acting in bad faith, maybe they think Sam Alito is too, because if he sat on his dissent and just didn't release it until it was too late, until after the administration had expelled the many individuals to El Salvador...
Pod Save America
Trump's Justices Turn On Him
Then they would be facing the situation once again where they're trying to order the administration to return people from El Salvador. And so a part of me wondered if that is what was happening and maybe that's why he's so mad, although he's usually mad.
Pod Save America
Trump's Justices Turn On Him
Yeah, so there's an odd wording in the order which just noted there's an application that is pending before the court. The usual wording is the application was presented to Justice Alito and referred by him to the court. That's not what the order said.
Pod Save America
Trump's Justices Turn On Him
And so that, too, lends itself to some speculation of, was Sam Alito just sitting on this application, not referring it to all of the members of the court, again, in order to buy the administration time? And we don't know whether that did indeed happen.
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Trump's Justices Turn On Him
I'd just like to note to any member of the Supreme Court that I am on signal if you want to accidentally add me to your group chat and let me know what's going on. But that, too, is a possibility that the seven justices were just concerned he was trying to run out the clock.
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Trump's Justices Turn On Him
I think it was an incredibly powerful writing. I especially appreciated his call to other judges and to the executive branch to insist that the executive branch abide by the law. And I thought that was especially pointed because many of the Supreme Court's actions to date
Pod Save America
Trump's Justices Turn On Him
have looked like attempts to avoid confrontations with the Trump administration and to avoid really holding their feet to the fire and them accountable to the law, maybe out of concern that they just wouldn't abide by the court's order. But that's an unsustainable state of affairs. You can't just give the administration the green light and not do anything.
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Trump's Justices Turn On Him
because you think they will disobey a court order, you're in effect like allowing them to violate the law if that's what you do. And so I really appreciated Judge Wilkinson coming down hard on that point and really writing, I think, for the Republican appointees on the Supreme Court.
Pod Save America
Trump's Justices Turn On Him
boss donald trump were at the white house easter egg roll on monday where they both commented on the situation as a jazz combo played in the background pete's doing a great job everybody's happy with him we have the highest recruit recruitment numbers i think they've had in 28 years uh no he's doing a great job it's just fake news they just bring up stories you know what a big surprise that a bunch of uh a few leakers get fired and suddenly a bunch of hit pieces come out
Pod Save America
Trump's Justices Turn On Him
It will make Sam Alito very mad if this makes a bestseller list.
Pod Save America
Trump's Justices Turn On Him
That is on hold because the 2-1 D.C. Circuit panel, two Trump appointees in the majority, paused the contempt order, which basically prevents Judge Boasberg from moving forward. And he had asked the government to submit declarations or to purge their contempt by bringing back everyone from the El Salvadoran prison that the government had wrongfully sent there.