Reasonable Minds in AARP v. Trump
In defense of Wes Hendrix -- and the U.S. Supreme Court
The Supreme Court’s ruling last Friday in AARP v. Trump (which I discuss with Dan in more detail in today’s podcast episode), and the saga of the case more generally has been polarizing, as just about everything is these days. One particular dichotomy that has emerged has been an attempt to pit the reputation of the district judge against the Supreme Court majority who ultimately disagreed with him — as if only one or the other of them can be good judges, reasonable people, etc. For examples of this emerging dichotomy, see Justice Alito’s dissent in AARP, Josh Blackman, Paul Cassell, Judge Ho, etc.
The dichotomy is false. One can believe all of the following things:
Judge Hendrix is an upstanding man and a very good district judge.
His decision to tell the ACLU that Friday that he would not grant an emergency injunction/TRO without giving the government 24 hours to respond was reasonable, given what he knew what the time.
While reasonable, that decision was also an effective denial of any emergency injunction/TRO targeted at irreparable injuries (such as rendition to an El Salvador prison) that might happen in the next 24 hours.
The Supreme Court’s own conclusion (in AARP I) that those irreparable injuries were sufficiently imminent, and therefore that it should act to preserve the status quo, was also reasonable, and proved even more reasonable in hindsight.
So far as I can tell, this is what the fight about jurisdiction, timelines, and reasonable judging in AARP v. Trump boils down to. When quite unusual things are happening quite quickly, sometimes reasonable minds can differ. Judge Hendrix’s reasonable decision produced an appealable order that the Supreme Court reasonably disagreed with. The fact that the Supreme Court issued an extraordinary writ does not necessarily mean that the district court was extraordinarily wrong.
Let me also remind people that neither Judge Hendrix nor the Supreme Court has yet decided the merits, including the important questions of whether we have been invaded by the country of Venezuela (which is, no kidding, the President’s theory); whether the Supreme Court is allowed to state the obvious fact that we have not (which is, no kidding, actually a pretty hard question); and what process is due for those who wish to challenge their designation as alien enemies (on which, see this thread from Orin Kerr about Monty Python and the Holy Grail). Those issues may well produce sharper divides in the future, but we are not there yet.
Do Blackman, et al. actually prefer a system that sends these migrants to a forever prison on the taxpayer dime or if they are pretending that the deportations weren't going to happen? They want to dance around the issuee without ever coming out and saying they're pro rendentions.
This is a good formulation. I'll merely add that, even if Judge Hendrix failed to rule on the preliminary injunction for the best reason—because he was performing life-saving surgery on a dying infant or taking a sick loved one to the ER while his cell was broken—the failure to rule *still* have been an "effective denial" of the motion. As I conceptualize it, the "constructive denial" finding is not so much viewed from the perspective of the judge, as Judge Ho and J. Alito seem to think, but from the perspective of the party seeking the injunction. Sometimes the two aligned, but I don't see why they'd have to. Am I thinking about this wrong? Because I've been shocked by the weirdly personal affront so many have taken to the issuance of plaintiff-protective emergency relief under extraordinary circumstances.