Yesterday, the Supreme Court issued a relatively rare clarification of its earlier opinion, which lifted the injunction on the deportation of immigrants to third-party countries. In a surprising response, Judge Brian Murphy in Boston ruled that he considered his orders regarding the eight immigrants set for deportation to South Sudan to remain unchanged by the decision. The Court quickly disabused him of that notion by declaring that he was not in compliance with its order. What was most remarkable, however, was the sharp concurrence by Justice Elena Kagan who, despite voting against the original order, called out Murphy for defying the authority of the Court. It was a commendable and principled position that escaped her colleagues, Justices Sonia Sotomayor and Ketanji Brown Jackson, in dissent.
In the new opinion, the justices made clear that their June 23 order applies fully to the eight immigrants in U.S. custody in Djibouti.
In their dissent, Sotomayor and Jackson appeared to overlook the implications of a district court judge’s defiance of the Court’s earlier decision. Sotomayor complained that the new order “clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial.”
It was a curious response because the Court’s recent rulings on injunctions are intended to rein in district judges and bring them back within the system’s functional limits. Judge Murphy seemed to give a stiff arm to the Court on its clear order to lower courts.
Regardless of your views on the merits, this system cannot function with such rogue operators at the trial level. That is the message sent by the Court in its unsigned order on June 23.
In responding to Murphy’s later order saying that his orders governing the eight men would remain in effect, the Court declared that “the May 21 remedial order cannot now be used to enforce an injunction that our stay rendered unenforceable.”
Murphy even lost Kagan in the action. She stuck to principle and said that she was on the losing side of the original issue when “a majority of this Court saw things differently.” However, she concluded that “I do not see how a district court can compel compliance with an order that this Court has stayed.”
The concurrence was an important moment for not just Kagan but the Court as an institution. It reaffirmed the core principles that should bind all justices to the judicial process and the integrity of the Court. Conversely, Justices Sotomayor and Jackson appear entirely adrift in dissents that have become hyperbolic and unhinged.
The rebuke of Judge Murphy should have been unanimous, but Kagan’s concurrence was an important affirmation of the shared values that preserve the integrity of the Court.