In the Trump 2.0 Era, The Courts Are Listening—And Not Just to Lawyers

What a small footnote in the Fourth Circuit's Abrego Garcia opinion tells us about how courts might approach the Second Trump Administration

Source: ChatGPT

My former boss Judge J. Harvie Wilkinson III’s latest opinion in the Abrego Garcia case (the April 17 one, not to be confused with his April 7 opinion in the same case) has gotten a lot of attention. Mostly positive, at least in the circles I travel in, and in my opinion well deserved. There are many striking things about the opinion, which denied the Government’s motion for a stay pending appeal and for a writ of mandamus. But one thing that I found particularly noteworthy, and something which might suggest how courts will, and should, respond to the Trump Administration 2.0—is its sole footnote, reproduced below.

The footnote is appended to a sentence that poses a hypothetical that serves to explain why the Executive Branch’s power to deport must be checked by due process: “If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?” The footnote cites, with only a “See, e.g.,” signal, two news articles posted just two and three days before the Fourth Circuit’s opinion issued. The articles report on comments by President Trump indicating that he wants to, and his administration was “looking into” and “studying,” the possibility of sending “homegrown criminals” —that is, U.S. citizens—to be housed in prison in El Salvador.

That’s a frightening prospect for many reasons, and one should want judges to worry about those worst-case scenarios when they’re thinking about the implications of how they interpret constitutional provisions like due process, just as Judge Wilkinson did here. What’s notable, though, is that the opinion’s citation to the two news articles reveals that (1) this hypothetical is actually not so hypothetical, but is actually something the Fourth Circuit is worried about; (2) the Fourth Circuit is reading the news and paying attention to what Trump is saying in interviews; and (3) the court believes that looking to Trump’s public statements, and not merely what Trump’s lawyers are saying in court, are fair game when ruling on the Government’s request for extraordinary relief. The panel seems to have cited the articles sua sponte; as far as I can tell from the docket, no one pointed the court’s attention to them. (Indeed, the Fourth Circuit appears to have denied the Government’s motion without even waiting for Abrego Garcia’s response brief; the response was due on 4/17 at 5 p.m., but the court issued its order 4/17 at 2:44 p.m.)

This is pretty unusual. In theory, appellate courts aren’t supposed to look outside the record—and certainly not supposed rely on news stories quoting the parties or their representatives, rather than just relying on what each side’s lawyers say in court. The Fourth Circuit here was sufficiently alarmed by what the President was saying in public—and perhaps sufficiently skeptical about whether it could rely on the Government’s lawyers to tell the panel everything it needed to know.

There’s been lots of speculation about other public statements by Trump officials courts might be paying attention to. (Here’s one example). And there’s reason to suspect that the Justices may be paying attention, as well. Given how swiftly the Court acted in issuing a middle-of-the-night order in the A.A.R.P. case, it’s plausible that the Court is paying attention to, for example, statements by Trump officials and the White House that seem flatly inconsistent with the Court’s order in Abrego Garcia. Jack Goldsmith has noted that such statements will create a big problem for new Solicitor General John Sauer in trying to maintain any credibility with the Court.

To the extent that the Supreme Court starts giving more heed to the Administration’s extrajudicial statements, that could make the Court’s approach to the second Trump Administration quite different from its approach to the first Administration. Recall perhaps the most divisive case from that period, Trump v. Hawaii. In evaluating the constitutionality of the Administration’s travel ban, the conservative majority refused to give any weight to the President’s many statements calling for a “Muslim ban,” instead upholding Trump’s order because the government had given a “facially legitimate and bona fide” reason for the ban. While it’s early, but my prediction is that we’re going to see fewer opinions that look like the Hawaii case this Administration.

If courts pay more attention to out-of-court presidential and Administration statements, that will be another example of how the “presumption of regularity”—”the courts’ baseline assumption that government officials act lawfully and in good faith,” as Alan Rozenshtein puts it—is in serious jeopardy. Justice Alito’s dissent to the A.A.R.P. order, in which Justice Thomas joined, shows that those two justices remain content to rely on the Government’s representation’s in court—and vexed that their colleagues apparently feel differently.

Up to now, the Supreme Court has sought to handle the unique threats posed by Trump has been to bend over backwards to try to save other institutions from themselves. The Court reined in lower courts that it saw as too eager to enjoin the Executive Branch. It stretched to interpret Section 3 of the Fourteenth Amendment in a way that makes it all but impossible to enforce. It created a sweeping rule of presidential immunity from criminal prosecution that with no obvious justification in the Constitution’s text or structure.

Quite simply, the Court seems to have been operating under the theory that Trump (to again quote Goldsmith) “wield[s] a Soprano touch on American institutions,” corrupting the institutions he has attacked by inducing them to break norms in response. On this theory, Trump is like a virus, but one that produces an immune response that is more dangerous for the host than the disease itself. As co-blogger Will has put it, the Court has “see[n] itself as trying to save the country from other institutions’ disproportionate responses to Mr. Trump.”

I don’t think the Justices will operate that way this time around. The institutions that might have sought to rein in Trump through their own norm-breaking the first time around have mostly been brought under his control. This time, the Court may realize it has no choice but to act decisively to respond to the threats Trump poses to our democratic order. And doing so will likely require the Court to start breaking some its own norms.

Indeed, that was the heart of Justice Alito’s complaint in A.A.R.P.: the Court’s failure to “follow established procedures.” I suspect that’s not the last time we’ll see that complaint during this Presidency. If the Court starts openly engaging with the Administration’s out-of-court statements, another “established procedure” will have fallen by the wayside.