Quick reactions to the National Guard ruling

Earlier today, the court issued its long-awaited ruling in Trump v. Illinois, denying the government’s application for a stay of the district court’s order barring the President from deploying the National Guard in Chicago. A few quick reactions: 

1. The court really took its time to rule on this one. The application was fully briefed (including the supplemental briefing the court requested on the meaning of “regular forces”) was complete on November 17—more than a month ago. The majority opinion, such as it is, is quite short—barely 3 pages. Justice Kavanaugh’s concurrence in the judgment is 7 pages; Justice Alito’s dissent is 16 pages; Justice Gorsuch’s dissent is 2 pages. None of those opinions should obviously have taken a month to craft, and the court often issues interim docket rulings with even lengthier dissents much, much more quickly. Here, because the court denied the stay, there was less urgency to get the ruling out, but it nonetheless seems like a long time. There’s no way to know, but I wonder if there was something odd at work—a decisive Justice waffling or even changing votes?

2. Justice Kavanaugh’s footnote 4 of his concurrence in the judgment is a bit puzzling. He goes out of his way to note:

The State and the Government disagree about whether the immigration officers have violated the Constitution in making certain immigration stops and arrests. The basic constitutional rules governing that dispute are longstanding and clear: The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. Cf. Whren v. United States, 517 U. S. 806, 813 (1996) (“[T]he Constitution prohibits selective enforcement of the law based on considerations such as race”). This application does not require us to delve into the parties’ underlying dispute and to determine whether any particular immigration encounter or series of encounters in Illinois has violated those basic constitutional principles.

This footnote is a little hard to square with his concurrence in Noem v. Vasquez Perdomo, where he said the following: 

To be clear, apparent ethnicity alone cannot furnish reasonable suspicion [for an immigration stop]; under this Court’s case law regarding immigration stops, however, it can be a “relevant factor” when considered along with other salient factors.

I suppose the two statements are reconcilable if one interprets “based on” as “based on alone,” but in my view a more natural sense of that phrase is that a decision is “based on” a fact if that fact is a relevant (and perhaps decisive) factor in the decision. 

Given the criticism Justice Kavanaugh’s opinion in Perdomo received—and the critics’ coinage of the derisive term “Kavanaugh Stops”—I wonder if this footnote (which I don’t think was strictly necessary to include) was an attempt to walk back his opinion in that case a tiny bit. Justice Kavanaugh seems more interested than other justices in using his opinions to speak to potential critics (which I actually find admirable) and that impulse may be playing a role here. 

3. Justice Alito hammers the majority for disregarding the normal principle of “party presentation”—the basic idea that courts should only rule on arguments actually raised by the parties. (Interestingly, that point was reinforced in a summary reversal with no noted dissents barely a month ago, an opinion that Justice Alito cites front-and-center in his dissent.) There’s something to be said for that principle as a general matter where a case implicates the rights of only the actual parties; it’s perhaps reasonable to say that, in a habeas corpus case, a court shouldn’t rummage for arguments that the petitioner didn’t come up with and the government had no chance to respond to.

But courts generally have some discretion to consider arguments not raised at least in some contexts. And when the Supreme Court is ruling on a decision of this magnitude that affects many people who are not parties to the case, there’s a good case that it makes more sense to get the issue right regardless of what the parties argued. Moreover, in that situation, the court can (and did here!) request additional briefing, ameliorating unfairness concerns about springing a new issue on a litigant without providing an opportunity to respond. Indeed, in its merits cases, the court regularly appoints amici to argue positions that no party has advanced—presumably because the court recognizes that what matters is getting the issue right, rather than letting the outcome depend on the happenstance of what a particular litigant argued. And while Justice Gorsuch notes that he would have preferred to leave “weighty questions . . . for another case where they are properly preserved and can receive the full airing they so clearly deserve,” the court already decides major questions on the interim docket with no more airing (and in a much greater rush) than the “regular forces” argument received here.

4. This is extremely trivial and frankly pedantic, but are Justice Alito’s uses of double emphasis the first use of that stylistic choice in a SCOTUS opinion? I have to confess that on this score I’m a traditionalist and I do not approve. 

5. Congrats to co-blogger Jack for receiving a lengthy footnote in Justice Kavanaugh’s opinion relying on one of Jack’s posts on his Substack, Executive Functions.