It is frequently observed that Donald Trump and his entire administration are masters of misdirection. It really is difficult to determine where to focus first when there are so many bright, shiny objects flying all over the place, in every direction, and in such profusion. What becomes increasingly clear is that it is entirely intentional. The Trump administration is taking quite seriously its mandate to create a political firestorm.
There was Elon Musk’s “move fast and break things” DOGE-athon; the “everything, everywhere, all at once” maelstrom of Project 2025 as it has unfolded at warp speed; the WTF tariffs that are making formerly affordable basics like shoes, clothes, school supplies, and toys beyond the reach of ordinary Americans; the “Big Beautiful Bill” that is going to screw our most defenseless neighbors out of healthcare and food assistance (don’t worry, Mitch McConnell assures us that they will just “get over it,” and Iowa Senator Joni Ernst, consummate humanitarian, has comforted her constituents by confirming that losing lifesaving assistance is not so bad, because eventually, everybody dies anyway); the attacks on women’s rights, gay rights, and trans rights; and the dangerously performative and unconstitutional deployment of our military to the streets of Los Angeles.
The smoke just never seems to clear.
The daily occurrence of outrageously repressive moves by Donald Trump and his enablers (which at this point includes just about every congressional Republican) has left much of the country feeling as if we are suffering from social and political vertigo; however, as many of our best writers and talking heads have reminded us, continually, now is not the time to look away and capitulate.
In predictable fashion, while most of us were watching the missiles fly over Iran, Israel, and Qatar a few Mondays ago, the Supreme Court once again took the opportunity to ignore the rule of law, along with common decency, by digging into their ever-murky “shadow docket.” The shadow docket is the equivalent of a judicial side-hustle, a secretive process to expedite, without much transparency, certain judicial requests. According to the Brennan Center for Justice at New York University:
Cases on the shadow docket, in contrast to those on the [regular] docket, typically do not receive extensive briefing or a hearing. The decisions are accompanied by little to no explanation and often lack clarity on which justices are in the majority or minority. They are sometimes released in the middle of the night, creating a sense of palace intrigue.
Well, according to attorney and Substack essayist Robert Hubble, that is precisely what happened while Donald Trump created a distraction—a terrible distraction, to be sure—in the Middle East.
Mr. Hubble observes that while we were watching the bombs bursting in the air over Qatar, the Supreme Court set aside a lower court stay that prohibited the deportation of immigrants to South Sudan. Those of you who check in on the condition of the rest of the planet from time to time may recall that South Sudan is not what anyone would consider either hospitable or safe, not for the unfortunate humans who are forced to live there, and certainly not for visitors. Foreign detainees in South Sudanese prison camps are likely to fare no better; one might logically assume they will fare much worse.
South Sudan has a long and brutal history of bloody civil war. The most recent of these wars raged from 2013 to 2020, and while there is currently a fragile peace, it is shaky at best. South Sudan is listed as one of the world’s most underdeveloped economies, so migrants alleged by our government to have committed violent crimes, sent there without a writ of habeas corpus, can look forward to consistently substandard treatment. In terms of regard for human rights, the United Nations observes that South Sudan has “one of the most horrendous” records of violating human rights in the world. Drought and famine also beset the African nation.
The corrupt majority of the Supreme Court appears to have returned to baseline, after a few occasional and feeble “throw the republic a bone” moments in which they feigned interest, briefly, in upholding the Constitution and the rule of law. Perhaps this assures the Trump administration that they can still be his one-stop shop when he needs an especially cruel, outrageous, or judicially irresponsible decision on his behalf.
So far, the Supremes seem happy to oblige.
Mr. Hubble observes that the lower court’s reasoning failed to impress the highest court in the land:
United States District Judge Brian Murphy described the question before him (and the Supreme Court) as follows:
This case presents a simple question: before the United States forcibly sends someone to a country other than their country of origin, must that person be told where they are going and be given a chance to tell the United States that they might be killed if sent there?
The Supreme Court’s shadow docket order—which contained no reasoning—answered that question in the negative, effectively saying, No, the person need not be told where they are going so they can be given a chance to tell the US that they might be killed if sent to the unknown, lawless third country.
So, it seems that two of the most foundational constitutional principles in law, those of habeas corpus and due process, are, in the majority view of the Supreme Court, irrelevant when applied to undocumented refugees or even documented refugees, many of whom are being disappeared by “Border Czar” Tom Homan’s goon squads as they try to follow the requirements of their entirely lawful presence in the United States.
The Trump administration insists that all deportees to South Sudan (and Djibouti and El Salvador) have been convicted of violent crimes, but that assertion has already been disproved by the deportation of other individuals who had no criminal records to El Salvador. We should also consider that even violent criminals, and even violent criminals who are not United States citizens, are guaranteed habeas corpus under our Constitution.
Let’s be really, really clear: The Supreme Court just gave the Trump administration permission to send refugees, some of whom are hardened, convicted criminals, some of whom have never engaged in criminal behavior inside our borders, and some of whom have been obediently following a completely lawful process for seeking political asylum, to rot in foreign hellholes, apparently indefinitely, for the crime of wanting a better life for themselves and their families in America.
By the way, this is only the beginning of the latest iteration of Trump’s ongoing, flagrant abuse of human rights: His administration is currently hard at work soliciting at least 12 other third-world countries to house more of the disappeared in the most wretched conditions imaginable.
I am in New York City this week, and sometimes I almost expect to see the Statue of Liberty throw her blazing torch of freedom into the harbor along with Voltaire’s “Book of Laws” (after all, she was a gift from the French), sink to the ground, remove her crown, and weep with frustration and grief.
Is this really who we want to be?
