Sotomayor Outlawyers Supreme Court Majority In Shadow Docket Deportation Ruling

For those keeping score in the high-stakes game of Constitutional Calvinball, that is DVD v. DHS, the Supreme Court’s conservative majority just issued a one-paragraph shadow docket ruling staying a preliminary injunction entered by Judge Brian Murphy of the District of Massachusetts (and blessed by the First Circuit) that had prohibited the Trump administration from deporting people to third countries without affording them a reasonable opportunity to argue that maybe they shouldn’t be dropped into the middle of a civil war where they don’t speak the language.

And yet, as of right now, the administration still can’t deport those people to South Sudan — or Libya, or any other flaming geopolitical dumpster the admin has on speed dial for warehousing human lives — because Judge Murphy clarified immediately after the release of the Supreme Court’s opinion that his pause remains in effect. How is this possible? Thank Justice Sotomayor and the dissenting justices.

The case is one steaming hot ball of contemptuous administrative action, with the administration repeatedly breaching orders while playing dumb and pointing the finger at hypertechnical excuses like, “oh, DHS didn’t deport them in violation of the order… we just put them on a DOD plane and we’re as shocked as you that our personal Deportation Uber then flew to Africa!”

The Supreme Court had ruled unanimously earlier this year in another case that the Trump administration needed to faithfully respect due process rights when it goes about deporting people. The administration took that order and made up fake quotes from it to keep doing what it wanted. In DVD v. DHS, the administration decided to test drive just how much it can get away with and last night, the conservative majority decided that the government can have a little arbitrary, unconstitutional activity as a treat.

For old-school Simpsons fans, the conservatives adopted Bart Simpson’s strategy for convincing the obedience school trainer that his dog had passed and came out just as convincing.

But since the shadow docket’s whole appeal is allowing the Court to make consequential rulings without having to explain itself, the liberal dissenters took the opportunity to explain the opinion for them.

The majority’s whole opinion reads:

The application for stay presented to JUSTICE JACKSON and by her referred to the Court is granted. The April 18,
2025, preliminary injunction of the United States District Court for the District of Massachusetts, case No. 25–cv–
10676, is stayed pending the disposition of the appeal in the United States Court of Appeals for the First Circuit and disposition of a petition for a writ of certiorari, if such writ is timely sought. Should certiorari be denied, this stay shall
terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of the Court.

Maintaining the status quo is an admirable justification for equitable action. Avoiding irreversible harm is, however, a much better one. There’s no good reason given why DHS needs to throw these people into South Sudan right now as opposed to waiting until the case concludes, except to the extent the administration hopes to moot the case via ethnic cleansing. And, yes, some of the key players here are objectively awful people but nonetheless have the right to a real hearing on whether or not they can be sent into a warzone.

There’s not really any doubt that the administration expected the Supreme Court to open the door to these deportations. What they ended up with is like a mechanic returning a car that won’t start by announcing that they fixed the cigarette lighter.

Because while the majority didn’t want to explain itself, the dissenters did. Over the course of 19 pages, Justice Sonia Sotomayor, with Kagan and Jackson backing her, blasted the ruling as little more than rubberstamping contempt. A “gross an abuse of the Court’s equitable discretion” as she put it. But she also dropped her own invitation to play technicalities.

First, the District Court’s remedial orders are not properly before this Court because the Government has not appealed them, nor sought a stay pending a forthcoming appeal.

The preliminary injunction addressed by the majority is not the only order. The dissent raises this point as part of its argument that the government failed to meet its burden to demonstrate irreparable harm, a burden the majority didn’t bother to explain how the government could’ve met because it can’t. Sotomayor cleverly notes that if the government claims the harm is based solely in the individuals it intended to send to South Sudan (but have temporarily parked in Djibouti) then the preliminary injunction isn’t responsible for that, it’s Judge Murphy’s subsequent remedial order that the government never appealed to the Supreme Court.

Judge Murphy saw the opening and went right for it.

Judge Brian E. Murphy: ELECTRONIC ORDER ENTERED. Plaintiffs’ Emergency Motion, Dkt. 174, is DENIED as unnecessary, subject to the below. The Court’s May 21, 2025 Order on Remedy, Dkt. 119, remains in full force and effect, notwithstanding today’s stay of the Preliminary Injunction. DHS v. D.V.D., No. 24A1153, slip op. at 12 (S. Ct. Jun. 23, 2025) (Sotomayor, J., dissenting) (“[T]he District Court’s remedial orders [were] not properly before [the Supreme] Court because the Government has not appealed them, nor sought a stay pending a forthcoming appeal.”). For the avoidance of doubt, and to the extent Plaintiffs N.M. and D.D. are indeed subject to third-country removal, see Dkt. 175 at 5-7, N.M. and D.D. are included among the individuals referenced in the May 21, 2025 Order. (BAH) Modified on 6/23/2025 (PK). (Entered: 06/23/2025)

The remedial order — which, for the record, requires only what the government ASKED FOR before turning around and complaining that their own request was too onerous — is the one that requires the private “credible-fear interview” with counsel and an interpreter. This, Sotomayor’s dissent notes and Judge Murphy agrees, is separate from the class-wide preliminary injunction and the source of all the supposed harms the administration asserts. While this dispute could’ve been avoided had the government abided by the preliminary injunction, now that it chose not to, what is to be done with these people in front of this court becomes a wholly separate inquiry that no one properly appealed.

Civil Procedure for the win.

It’s incredibly satisfying to see a justice finally stop bringing knives to the gun fight. Justice Sotomayor’s dissent took the deliberate murky abyss that the majority celebrates with its shadow docket opinions and applied a little meaning atop the empty signifier. Throughout this case, the administration has acted with utter contempt for the court, relying on juvenile semantic games to subvert the system. If they want to engage in technical readings, well, the justices read the rulebook sideways too. And they’re much smarter.

In a sane system, none of this would be necessary. Majority opinions would have to defend themselves and the government wouldn’t be a bad faith proto-Eddie Haskell every time it’s summoned before a judge. But here we are and the dissent acted accordingly with the hand it was dealt.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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