There are sculptures of tortoises scattered around the Supreme Court grounds. They symbolize, the court’s website says, “the slow and steady pace of justice.”
But the court can move fast when it wants to, busting through protocols and conventions. It did so around 1 a.m. on Saturday, blocking the Trump administration from deporting a group of Venezuelan migrants accused of being gang members under a rarely invoked 18th-century wartime law.
The court’s unsigned, one-paragraph order was extraordinary in many ways. Perhaps most important, it indicated a deep skepticism about whether the administration could be trusted to live up to the key part of an earlier ruling after the government had deported a different group of migrants to a prison in El Salvador.
That unsigned and apparently unanimous ruling, issued April 7, said that detainees were entitled to be notified if the government intended to deport them under the law, “within a reasonable time,” and in a way that would allow the deportees to challenge the move in court before their removal.
There were indications late Friday that the administration was poised to violate both the spirit and letter of that ruling. Lawyers for the detainees said their clients were given notices that they were eligible to be deported under the law, the Alien Enemies Act. The notices were written in English, a language many of them do not speak, the lawyers said. And they provided no realistic opportunity to go to court.
The American Civil Liberties Union, racing against the clock, filed its emergency application to the Supreme Court on Friday evening — Good Friday, as it happened — and urged the court to take immediate action to protect the detainees as part of a proposed class action.
The lawyers told the court that they feared their clients could be deported within hours, saying that some had already been loaded onto buses, presumably to be taken to the airport.
The Supreme Court did act fast. “The government is directed not to remove any member of the putative class of detainees from the United States until further order of this court,” the order said.
In a typical case, the Supreme Court would await a ruling from the relevant appeals court, here the U.S. Court of Appeals for the Fifth Circuit, and ask for a response from the administration, on a deadline set by the justices.
The justices did neither of those things. Instead, their unsigned opinion said: “The matter is currently pending before the Fifth Circuit. Upon action by the Fifth Circuit, the solicitor general is invited to file a response to the application before this court as soon as possible.”
Inviting rather than ordering the government to respond is standard language. But asking for a response “as soon as possible” is not an instruction longtime observers of the court recognized. It was not tortoise talk.
The Fifth Circuit issued its ruling in the small hours of Saturday morning, denying the A.C.L.U.’s request for emergency relief as premature.
It would not have been unusual for a single justice to issue an “administrative stay”— a brief pause — to let the court consider the matter in a more deliberate fashion. Chief Justice John G. Roberts Jr. has issued such stays in recent weeks, as a flood of emergency applications related to early moves by the Trump administration have come before the court.
But each of the nation’s 13 federal circuits is supervised by an assigned justice, and the member of the court responsible for overseeing the Fifth Circuit is Justice Samuel A. Alito Jr. He was apparently not inclined to issue a stay on his own. Indeed, the Saturday order noted that both he and Justice Clarence Thomas dissented.
The court’s order said that Justice Alito would explain his reasoning at some point. That, too, is unusual, as dissenting justices are generally afforded time to issue their opinions along with that of the majority.
The days to come are likely to be busy ones at the court, which is yet to address the substantial legal questions in the case, including whether the wartime law applies at all, and what the detainees must show to overcome accusations that they are gang members.
For now, the justices have tried to ensure that those questions can be addressed by federal courts while the people affected are still in the United States.
= new reply since forum marked as read
