Justice Blindfolded

 Every line is worth reading in Justice Jackson's and Justice Sotomayor's searing dissents in today's birthright citizenship case. Taken in tandem with Sotomayor's dissent earlier this week, in the case where the Supreme Court allowed Trump to resume his rapid-fire deportations to third countries where people face a risk of torture—without notice or a chance to plead their case—it makes for a damning portrait of the state of our democracy. 

The dissents in both cases lay out a frighteningly similar course of events. First: the executive branch sneeringly disregards federal law and the protections of the Constitution (in particular, the Fifth and Fourteenth Amendments, at least as applied to immigrants and the children of immigrants). Then, lower court judges do their jobs by ordering the White House to stop violating federal law. Then, the administration thumbs their nose at the judges, treating them with insolent scorn and defiance. 

And then—at the end of this journey—in both cases—the Supreme Court's 6-judge conservative majority effectively rewards the administration for it. They practically endorse the administration's rank disdain for the orders of the federal judiciary and the rule of law. 

In neither case did they rule overtly on the merits for the administration's legal arguments—but what they accomplished instead may have been even more insidious. Because they provided a back-door way for the administration to sneak through their unlawful actions without ever having to provide a convincing legal justification. 

In the third country deportations case, for one, the conservative majority simply granted emergency relief via the shadow docket, with no reasoning provided. 

In the other, they punted on the merits and simply used this case as an opportunity to all-but abolish nationwide injunctions—depriving courts of the one most effective means at their disposal to quickly protect constitutional rights in the face of the executive branch's open disregard of our country's founding document. 

Justice Sotomayor pointed out that affording the administration equitable relief in such circumstances of open defiance—among the many other problems with it—was also a violation of the longstanding principle of "unclean hands"—a defense in equity that is supposed to ensure that people can't take advantage of equitable relief (like stays of injunctions) when the injuries they face are the product of their own wrongdoing. 

Here, the government says it is "injured" because it's not being allowed to violate people's rights. But that is not the sort of injury that should be cognizable—in law or equity. 

It may strike you momentarily as an astonishing act of judicial humility—if nothing else—that the Supreme Court decided to reward the executive branch for thumbing its nose at the federal bench—ostensibly its co-equal branch of government, and one to which the nine justices also belong. But don't be fooled. Justice Kavanaugh's concurrence gave the game away. 

It's a very strange concurrence. But what it amounts to in practice is a scheme to effectively channel the equitable powers of the courts away from the district judges and into the hands of the Supreme Court justices themselves. So, it's a power-grab; not an act of self-denial. He says that we shouldn't worry about losing the tool of nationwide injunctions. We needn't fear that this loss will result in a patchwork of different laws depending on district or a lack of legal clarity about federal rights. Why? 

Because—he says, in so many words—the Supreme Court itself will provide all the interim relief needed, pending a final judgment on the merits—they will provide, that is, the form of nationwide interim relief usually offered through lower court injunctions—by issuing more emergency rulings on its shadow docket. 

Oh goody. So, the shadow docket can essentially just eat up the normal process of issuing reasoned opinions even more than it has already. We can expect even more unexplained rulings like the one on the third country deportations case from earlier this week—a knee-jerk decision issued on an emergency basis, with no legal reasoning provided, that stripped away statutory rights that may mean the difference between life and death, or torture and freedom, for thousands—all without any judicial explanation. 

But what will the practical effect of all this be? Justice Jackson paints a dire portrait. If in effect every person who suffers a constitutional violation from this day forward has to get their own lawyer and file suit separately—because there is no such thing anymore as either nationwide relief or the government's good-faith willingness to respect the precedent of circuit courts, at least within their respective regions—then the result is obvious. 

Effectively, we are going to create a two-tier system of justice—where those with money and social clout will be able to secure relief from violations for themselves and themselves alone—and everyone else will be left to hang. Jackson writes: 

Consequently, the zone of lawlessness the majority has now authorized will disproportionately impact the poor, the uneducated, and the unpopular—i.e., those who may not have the wherewithal to lawyer up, and will all too often find themselves beholden to the Executive’s whims. [...] What the majority has done is allow the Executive to nullify the statutory and constitutional rights of the uncounseled, the underresourced, and the unwary[.]

I was reminded all too starkly of Edgar Lee Masters's depiction of a two-tier justice system in America, in his poem "Carl Hamblin" (part of his great collection, The Spoon River Anthology). He depicted as evocatively as anyone what it means to have one justice for the poor and another for the rich. In the poem (speaking through the character of Hamblin), Masters depicted the personification of justice in her usual pose—with sword and scales. 

But, look more closely at both, he says: "She was brandishing the sword, / Sometimes striking a child, again a laborer, / Again a slinking woman, again a lunatic. / In her right hand she held a scale; / Into the scale pieces of gold were tossed / By those who dodged the strokes of the sword. / A man in a black gown read from a manuscript: / 'She is no respecter of persons.'"

One justice for the poor, that is—the bloodied end of the sword; another justice for the rich—the scales weighted in their favor. 

That is what the six conservative justices have wrought today, indeed. A two-tier justice system. A sword for the "uncounseled, the underresourced, and the unwary" as Jackson put it—the scales for the rich and powerful, even as they thumb their noses at the face of justice. 

No wonder she would need to be blindfolded—how else to endure it? 

As Masters concludes the poem: 

The madness of a dying soul
Was written on her face;
But the multitude saw why she wore the bandage.