As we approach the 100-day mark of Trump 2.0, we see, Lord knows, much to worry about. But one reassuring development has been that, by and large, the judicial branch has stood tough against the administration’s lawlessness. Federal judges James Boasberg and Paula Xinis are early heroes of the second Trump regime. I’m sure there are more who’ve escaped my notice.
I’m old enough to remember when the name J. Harvie Wilkinson III made me shake. He was elevated to the federal bench by Ronald Reagan, was affiliated with the Federalist Society, and he always, on lists of possible Supreme Court nominees, occupied one of the hard-right slots. But now Wilkinson too has become a voice of sanity, writing the three-judge ruling handed down Thursday night that rebuked the Trump administration in the Kilmar Abrego Garcia case.
The ruling is unequivocal and, as we shall see, went out of its way to alert Americans to the constitutional threat the administration poses. But it does something more important: It returns the spotlight to the Supreme Court, and specifically to Chief Justice John Roberts, pressuring them to stand up to this madness. And so, one of the key controversies roiling our democracy, from this case to others, is this: What will Roberts do?
We’ll return to that. But first, let’s review Wilkinson’s judgment. Here are the money quotes:
“It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting the right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.… This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from the courthouse still hold dear.”
“The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail” in court.
“Now the [executive and judicial] branches come too close to grinding irrevocably against one another in a conflict that diminishes both.”
Notice in that first quote the use of the word “residents.” Not citizens. This is a clear recognition that the language of the Fourteenth Amendment—specifically the due process clause—extends protections not to “citizens” but to “persons.” Abrego Garcia has constitutional rights. Period. His character and his immigration status are totally irrelevant.
The Wilkinson opinion will inevitably toss the matter back to the Supreme Court, which ruled on April 10 that the Trump administration must “facilitate” Abrego Garcia’s return to the United States. The court’s order was pretty mealy-mouthed. The key sentence reads: “For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”
Now the court will be compelled to take a stronger stand. Can the nation’s highest court possibly allow this situation to continue? The government of the United States admits Abrego Garcia was deported by mistake and then says it’s powerless to return him, that only El Salvador can do that; and El Salvador says it’s powerless to return him, that only the United States can. If the court’s six conservative justices have any shred of dignity and respect for the role they’re supposed to play in this democracy, they cannot let this stand. It’s a fundamental issue.
Other equally fundamental issues are headed the court’s way. It is weighing what to do about Trump’s ability to fire executive agency heads unilaterally. Just recently, the court blocked the reinstatement of two executive agency officials Trump had fired—but it did so only temporarily, while the court considers whether Trump had the authority to fire them. Still, that order was a temporary win for Trump—and was written by Roberts himself.
And just Thursday, we learned that the court will hear arguments on birthright citizenship on May 15. A decision will likely follow in June or July. This, again, would seem on the surface to be as open-and-shut as the Abrego Garcia matter, and for much the same reason: The Fourteenth Amendment says “persons,” and it states quite plainly in its very first sentence: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
We seem not to be confronted with legal questions. Those are settled. As U.S. District Judge Deborah Boardman recently ruled, in deciding against a Trump administration motion, “No court in the country has ever endorsed the president’s interpretation.”
There remain only political questions, the chief one being: What feat of originalist–unitary executive legerdemain will the court’s conservatives perform to jam the square peg of Trump’s goals into the round holes of the United States Constitution?
Whether they will do so is up to Roberts. Once upon a quaint old time, the chief justice would cajole his colleagues into consensus on matters of historical import. Earl Warren made sure that the ruling on Brown v. Board was 9–0, because he wanted the country to see that the court was united on this great historical question of segregation versus integration. One doubts 9–0 is possible on these major cases today, with these two guys hanging around. But Roberts at least should have the power to steer a majority to uphold the ideas that words mean what they say and that this is not a nation of one-man rule. Roberts’s name will live in history, either alongside brave jurists like Boasberg and Xinis or in infamy, alongside Roger Taney and, well, Clarence Thomas.
This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.