Paul Rosenzweig writes:

In the American system, courts don’t make law; they interpret it. The act of interpreting the law requires, well, interpretation—not mere pronouncement, but an explanation for that pronouncement, backed up by law, evidence, and logic.

That’s why the Supreme Court’s failure to offer any sort of reasoning to justify its order in Department of Homeland Security v. D. V. D is a threat to the rule of law, a reward for defiance, and a horrific example of a judicial process off the rails. The order is, unfortunately, only one of a recent spate of unexplained orders by this Court.

The case involved the efforts by DHS (where I worked from 2005 to 2009 as a George W. Bush appointee) to deport aliens who are allegedly illegally present in the United States to third countries (that is, to countries other than the one from which they came) without affording them notice or due process. At issue was Donald Trump’s efforts to send several individuals to South Sudan, where, they said, they would be subject to torture. Trump’s process denied them the opportunity to prove that they had a “credible fear” of harm and to argue that sending them there violates the Convention Against Torture (to which the United States is a signatory). A district court in Massachusetts had provided a preliminary-injunction order that prohibited sending the individuals to South Sudan without a hearing, leaving them stuck in limbo en route in Djibouti. The Supreme Court order lifted that injunction.

The order is so problematic that two commentators have dubbed it “the worst Supreme Court decision of Trump’s second term.” But even that is, in a way, too generous. Calling the order a “decision” suggests that the Court offered reasons for its judgment.

In D. V. D., in what could be, quite literally, a matter of life or death, the Court simply ordered the injunction lifted.

This disregard for explanation is destructive to the idea that law matters. Reason and persuasion are a court’s stock in trade; as Aristotle said, “the law is reason.” Reason is all that stands between a court’s claim that it is doing “law” and the challenge that it is doing “politics.”

At least one of the conservative justices, Amy Coney Barrett, has said that she understands the importance of justification. Three years ago, she gave a speech at the Ronald Reagan Presidential Foundation & Institute, in which she movingly spoke about what she viewed as the Court’s defining characteristic—the commitment to explaining its decisions in public. To those who criticized the Court (this was in the immediate aftermath of the Dobbs abortion decision) for imposing a political-policy position, she had a simple response: “Read the opinion.” Even the most odious of the Court’s decisions, such as the fugitive-slave case, Dred Scott, and the Japanese-internment case, Korematsu, offered reasons for their analysis—reasons that could be read and understood then and today, however unconvincing and repulsive they were.

But at least one could be repulsed and unconvinced by them! Even poor reasoning in controversial decisions, such as in the transgender-health-care decision this term, shows how the Court reached its decision and allows for the possibility of a counterargument. One can’t argue with a void. The complete absence of any attempt to explain (especially in controversial 6–3 cases such as D. V. D.) turns the Court into a mere vote-tabulation machine, accumulating political preferences by a “yes” or “no” accounting that is functionally indistinguishable from how Congress passes legislation.

If Barrett wants us to read the opinion, she has to write it first. And perhaps in the act of writing, the Court might have recognized the error of its ways. [Continue reading…]