(CNN) — An appeal that landed at the Supreme Court Tuesday could test the justices’ emerging concern about President Donald Trump’s aggressive deportation policies and whether he is willing to defy judicial orders.
The new administration case arises from its desire to deport migrants to South Sudan and other places where they have no connection, without sufficient notice or ability to contest their removal. A US district court judge based in Boston said last week that the administration “unquestionably” violated his order when it began deportation flights and provided little time for migrants to challenge their removal to war-torn South Sudan.
Irrespective of how the justices’ respond to this latest deportation case, the controversy calls attention to developing distrust among the conservative justices regarding the Trump immigration agenda.
This is one area where his norm-busting approach, typically splitting the justices along ideological lines, has driven them together.
That was seen in the trajectory of earlier cases involving Venezuelan migrant deportations under the wartime Alien Enemies Act and, separately, in the justices’ oral arguments in a dispute related to birthright citizenship.
One of the tensest moments in that May 15 hearing came when Justice Amy Coney Barrett asked US Solicitor General D. John Sauer if he was indeed saying the administration could defy a court order.
“Did I understand you correctly to tell Justice (Elena) Kagan,” Barrett began, “that the government wanted to reserve its right to maybe not follow a Second Circuit precedent, say, in New York because you might disagree with the opinion?”
“Our general practice is to respect those precedents, but there are circumstances when it is not a categorial practice,” Sauer answered.
“Really?” Barrett said, leaning forward on the bench and pressing on, in search of some answer revealing adherence to court orders. She amended the hypothetical scenario to involve the high court itself.
“You would respect the opinions and judgment of the Supreme Court,” she asked, “You’re not hedging at all with respect to the precedent of this court?”
“That is correct,” Sauer said.
Barrett was not the only conservative picking up on concerns voiced by liberal Kagan or asking about Trump administration regard for Supreme Court rulings.
“I want to ask one thing about something in your brief,” Justice Brett Kavanaugh said to Sauer. “You said, ‘And, of course, this Court’s decisions constitute controlling precedent throughout the nation. If this Court were to hold a challenged statute or policy unconstitutional, the government could not successfully enforce it against anyone party or not, in light of stare decisis.’ You agree with that?”
“Yes, we do,” Sauer said.
South Sudan deportations may test conservatives
The conservative-dominated Supreme Court is often aligned with Trump. The justices have endorsed many of his arguments for expanded executive branch authority. Last Thursday, the justices by their familiar 6-3 split bolstered the president’s control over independent agencies, in that case, intended to protect workers.
But when it comes to Trump’s immigration crackdown, his uncompromising moves have caused the justices to shrink back.
New fissures could emerge with Tuesday’s case testing the deportation of migrants to places where they could face persecution and without any meaningful opportunity to contest their removal. The migrants whom the administration intended to send to South Sudan are now being held at a US military base in Djibouti. The migrants are from multiple countries, including Vietnam, Mexico, and Laos, and all have criminal records, according to the Department of Homeland Security.
US District Court Judge Brian Murphy, who last week said the administration had violated his order when it undertook the deportation flight, on Monday reiterated his stance that the detainees are owed due process. “To be clear,” he said, “the Court recognizes that the class members at issue here have criminal histories. But that does not change due process.”
In the administration’s filing to the Supreme Court Tuesday, Sauer contended the administration had fulfilled the requirements of a Department of Homeland Security policy for such third-country deportations.
Challenging Murphy’s action, he wrote, “The United States has been put to the intolerable choice of holding these aliens for additional proceeding at a military facility on foreign soil – where each day their continued confinement risks grave harm to American foreign policy – or bringing these convicted criminals back to America.”
The court’s response to the multitude of Trump cases arising over his many executive orders has been varied, defying any throughline. Even in the immigration sphere, Trump has on occasion prevailed. On May 19, for example, the court allowed him to lift the Biden administration’s temporary humanitarian protection for hundreds of thousands of Venezuelans living and working in the US. Only Justice Ketanji Brown Jackson dissented.
Abrego Garcia case undermined justices’ trust
Yet Trump’s drive to swiftly deport migrants deemed dangerous without the requisite due process of law has plainly fueled distrust of the administration across the federal judiciary.
At the Supreme Court, the justices’ confidence in Trump has been additionally undermined by the administration’s stalling on the return of Kilmar Abrego Garcia, a Maryland man wrongly deported to El Salvador in mid-March and sent to a brutal prison.
The justices on April 10 ordered the administration to “facilitate” the Salvadoran national’s return to the US. He is still not home.
In a more recent detainee case, on May 16, the Supreme Court majority referred to Abrego Garcia as it expressed new wariness – and a new consensus – on Trump’s use of 18th century wartime law for deportations.
The first time the justices weighed in on a case involving Trump’s effort to invoke the Alien Enemies Act against Venezuelan migrants accused of being members of the Tren de Aragua gang, on April 7, the justices divided bitterly.
Chief Justice John Roberts and most of the conservatives clashed with the liberals, who warned that the majority’s decision largely favoring the administration failed to account for the “grave harm” the alleged Venezuelan gang members faced if deported to a Salvadoran prison as Trump wanted.
“The Government’s conduct in this litigation poses an extraordinary threat to the rule of law,” the liberal justices wrote. “That a majority of this Court now rewards the Government for its behavior … is indefensible. We, as a Nation and a court of law, should be better than this.”
But as Trump has accelerated his deportation tactics, the court’s votes on the Alien Enemies Act have shifted. And on May 16, a new majority of liberal and conservative justices voiced fears that migrants would be deported without sufficient due process.
It was becoming evident that the Trump team was only grudgingly complying, if at all, with the court’s earlier order that the Alien Enemies Act required due process. Lawyers for detainees said they were given scant notification and hasty deadlines for challenging their cases.
Lawyers for a group of Venezuelan migrants being held in a north Texas detention center sought an emergency order to ensure they would not be rushed out of the country; the justices responded by imposing a brief freeze in the early morning of April 19 on deportations.
After taking more time to review the situation, the court on May 16 extended the freeze and ordered a lower court hearing on whether Trump was lawfully invoking the Alien Enemies Act – a measure that has been used only three times since the country’s founding and only during wartime.
“Evidence now in the record (although not all before us on April 18) suggests that the Government had in fact taken steps on the afternoon of April 18 toward removing detainees under the AEA – including transporting them from their detention facility to an airport and later returning them to the facility,” the justices said in an unsigned opinion joined by conservatives and liberals.
Referring to the court majority’s April 19 middle-of-the-night order preventing those deportations, the justices added, “Had the detainees been removed from the United States to the custody of a foreign sovereign on April 19, the Government may have argued, as it has previously argued, that no U.S. court had jurisdiction to order relief.”
To underscore that point, the majority referred to the Abrego Garcia case as evidence that the administration might claim it could not return detainees wrongly deported. (Only Justices Samuel Alito and Clarence Thomas dissented from that May 16 order suspending use of the Alien Enemies Act.)
Nationwide injunctions at issue in birthright citizenship case
Perhaps the most important court test in these early months of Trump’s second presidency will be resolution of the dispute over injunctions preventing Trump from ending birthright citizenship for babies born in the US to undocumented people or those with temporary status.
The right dates to the 1868 ratification of the 14th Amendment and has been reinforced by Supreme Court precedent going back to 1898.
The legal issue in the case heard May 15 is not the bottom-line constitutionality of Trump’s move to erase the birthright guarantee but rather the method lower court judges have used to temporarily block Trump’s order signed on his first day back in office.
US district court judges have employed “nationwide injunctions,” under which a single judge blocks enforcement of a challenged policy not only in the judge’s district but throughout the country. Trump wants the injunctions narrowed to cover only the individual parties to a lawsuit in a specific district.
Some justices have in the past suggested lower court judges have exceeded their authority with such sweeping injunctions. But Trump may be forcing some of them to rethink that view because of the move to end more than 150 years of automatic birthright citizenship.
“Let’s just assume you’re dead wrong,” about the validity of Trump’s executive order, Kagan told Sauer. “Does every single person that is affected by this EO have to bring their own suit? Are their alternatives? How long does it take? How do we get the result that there is a single rule of citizenship that is the rule that we’ve historically applied rather than the rule that the EO would have us do?”
Conservative justice Neil Gorsuch also questioned whether “patchwork problems,” such as babies born in the US to undocumented migrants having varying citizenship rights depending on the state – could “justify broader relief.”
The remarks reflected the larger dilemma for a court that itself has pushed boundaries. Some Trump positions play to the justices’ interests; but some are so extreme that they rattle the justices’ own presumptions.
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