Outrage Matters

Is the U.S. Supreme Court losing patience with Donald Trump? A.A.R.P. v. Trump (April 19, 2025) may mark an important shift in the Supreme Court’s attitude toward Trump Administration policies – immigration policies in particular.  The justices, by a 7-2 vote, issued a temporary restraining order (TRO) forbidding the government from removing alleged illegal aliens from the United States under the Alien Enemies Act of 1798.  The justices issued the TRO even though, as Justice Samuel Alito pointed out in dissent, government attorneys informed the lower court that the habeas petitioners would not be removed from the United States for several days.  The TRO was not accompanied by an opinion, but court watchers could clearly infer that the judicial majority was no longer prepared to believe Trump Administration assertions, given the lack of commitments the administration has recently demonstrated to the rule of law in immigration cases.

Two opinions handed down just days before A.A.R.P. had a very different tone. In Trump v. J.G.G. (April 7, 2025), a 5-4 majority vacated a TRO prohibiting the Trump Administration from using the Alien Enemies Act to remove Venezuelan nationals whom the Justice Department alleged to be gang members.  The problem, the judicial majority claimed, was that the detainees had asked for relief under the Administrative Procedure Act when their claims should have been made in a habeas corpus proceeding.  Nothing in the per curiam opinion (a short, unsigned opinion issued by the court as a whole) suggested anything was amiss or unusual about the case.  The judicial majority blandly confirmed that the “detainees… are entitled to notice and an opportunity to challenge their removal.  The only question is which court will resolve that challenge.”  The case was decided on the sort of legal technicality that justices often use in other cases.  A few experts in civil procedure have strong feelings about whether lawyers for the detainees properly dotted their “i’s” and crossed their “t’s,” but persons who do not teach federal courts for a living typically lack any notion of whether the justices should have reached the same result in a less fraught political case.  A resurrected Hannah Arendt might have found an excuse to add an addendum to The Banality of Evil.

The judicial majority adopted the same bland tone when reaching different conclusions in Noem v. Abrego Garcia (April 10, 2025).  The justices issued an order requiring the Trump Administration “to ‘facilitate Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”  Again, the justices implied nothing was amiss with Trump Administrative practice, other than a mistake had been made with respect to a particular individual that needed correction.  To the extent the judicial majority expressed concern, that concern was with the lower federal courts not showing enough respect for the Trump Administration practices.  The steps federal courts could take to ensure Abrego Garcia’s return, the opinion intoned, must exhibit “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”

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Justice Sonia Sotomayor’s statement (joined by Justices Elena Kagan and Ketanji Brown Jackson) expressed the outrage missing from the majority statement in Noem.  She noted that the Trump Administration had flown Garcia to “a ‘terrorist confinement center’ in El Salvador,” even though administration officers “cited no basis in law for Abrego Garcia’s warrantless arrest, his removal to El Salvador, or his confinement in a Salvadorian prison.”  “Instead of hastening to correct its egregious error,” Sotomayor continued, the Trump Administration wanted to “leave Abrego Garcia, a husband and a father without a criminal record, in a Salvadorian prison for no reason recognized by the law.”  This was an affront to constitutional commitments to the rule of law.  Sotomayor pointed out that Justice Department officials in the United States were arguing that Trump was authorized to “deport and incarcerate any person, including U.S. citizens, without legal consequence, as long as [he did] so before a court can intervene.”

Judicial appointees of all political parties on the lower federal courts consistently adopt Justice Sotomayor’s voice, expressing outrage when insisting that persons have due process rights when in the United States and that the United States has a constitutional obligation to retrieve any person deported without a hearing on their right to remain in the United States.  Judge Harvie Wilkinson, appointed to the bench by Ronald Reagan, excoriated the Trump administration for “asserting a 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.” “Congress, common sense, basic decency, and this Court all disagree,” Biden judicial appointee Judge Brian Murphy asserted, with Trump Administration claims that “the United States may send a deportable alien to a country not their origin, not where an immigration judge has ordered, where they may be immediately tortured and killed, without providing that person to tell the deporting authorities that they face grave danger or death because of such deportation.”

Outrage matters for legal reasons.  Government officials who are making good faith efforts to implement constitutional policies and respect constitutional rights warrant judicial deference.  This deference is warranted because government officials making good-faith constitutional judgments often have more information on which to base their decisions and greater popular support than courts, whose knowledge is often confined to whatever information lawyers choose to present.  Deference is not warranted when courts conclude that government officials are engaged in a campaign to subvert basic rule of law principles and constitutional governance.  America made progress against racial segregation in the South only when justices stopped taking the word of state officials that Jim Crow policies were in the interest of all races and began acknowledging, as Chief Justice Warren said in public, that “segregation in public education is not reasonably related to any proper governmental objective,” and in private that the only basis for segregation was white supremacy.  The Trump Administration has forfeited any constitutional claim for deference after months of deceiving courts, stonewalling courts, and ignoring judicial orders.  The justices were right to silently say, “we do not believe you,” when the Justice Department tried to assure the court that no one would be deported in the absence of a TRO.

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Outrage trumps technicalities.  Justice Alito’s dissent in A.A.R.P. raised numerous relatively obscure objections to the decision to issue a TRO.  Professor Steven Vladeck of Georgetown Law School, a leading expert on federal courts, thinks Alito is mistaken on all points.  The rest of the world, including most of the judges, one suspects, has no clue.  In ordinary cases, judges do their best to get the technicalities right.  Outraged justices do justice.  They do not seek legal minutia to permit threats to the rule of law and constitutional governance.

Outrage matters for expressive reasons.  The dispassionate judicial tone that is appropriate for most cases communicates that many constitutional issues are difficult, that the parties before the court are engaged in a good faith dispute over the constitutionality of some action.  A different tone is appropriate when the government engages in a sustained effort to ignore basic rule of law principles.  Everyone knows the government has no evidence that many persons who have been deported are gang members, there are no state secrets that must remain mysteries, and the El Salvador government is hardly in a position to resist a serious demand by the Trump Administration to return persons unconstitutionally deported to barbaric prisons in that country.  In such circumstances, the tone of a judicial opinion must communicate to citizens that the judges know, and they should know that the government is making no effort to act constitutionally, that the government is lying and abusing judicial procedure in an effort to cover up and sustain policies that undermine the rule of law and constitutional government.

The judicial majority in A.A.R.P. was content to silently inform the Trump Administration that the Supreme Court could no longer trust the Justice Department.  Justice Department claims about American immigration policy no longer warrant any deference because past lies, evasions, and failures to comply with judicial orders have made clear that the Trump Administration has embarked on a campaign to subvert constitutional government, not merely to advance a constitutionally mistaken policy.  At some point, more than silent outrage may be required, as Trump officials attempt to undermine constitutional protections for any person or institution they find hostile to administration policies.  The question remains whether A.A.R.P. is the first sign that the Supreme Court majority is fed up with the Trump Administration – or only a minor expression of annoyance not to be repeated.

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Editor’s Pick

by MAXIM BÖNNEMANN

“It is instead the middle, the liberal, well-meaning, easily upset middle that desperately needs the protection this kind of language provides. Because it is the middle of the empire that must look upon this and say: Yes, this is tragic, but necessary, because the alternative is barbarism.”

American journalist and novelist Omar El-Akkad reflects on the horror in Gaza and the deep complicity of the “polite liberal circles of the West.” Shifting between autobiographical reflections and powerful observations of the present, El-Akkad writes about silence and denial, about language and the loss of words, the authoritarianism of Arab regimes, and the dark, deadly side of Western liberalism. One day, everyone will have always been against this — but by then, it will be too late.

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The Week on Verfassungsblog

summarised by EVA MARIA BREDLER

Pope Francis passed away on Easter Monday. No matter how you relate to the Catholic Church, his work was marked by a sort of compassion that our international law debates could profit from. In an open-air mass in Lampedusa, he said: “We are a society that has forgotten how to cry.” In 2024, he called the “systematic work” of governments to deter migrants a “grave sin.”  Whether considered a sin, a source of shame, or strategically justified – deterrence-based migration policy has made its way into the coalition agreement of the new German government between the CDU/CSU and SPD. DANIEL THYM (GER) analyses the promised migration policies.

The coalition agreement includes another proposal that some consider morally questionable – a new form of military service. The majority of young people in Germany are opposed to it. While conscription is a constitutional obligation for all male citizens, the fundamental right to conscientious objection remains protected even in a national defence. KATHRIN GROH (GER) maps out possible models of military service and their constitutional requirements.

Russia’s war against Ukraine also played an important role in another recent decision: Estonia excluded Russian citizens from voting in local elections amid security concerns. RAIT MARUSTE (ENG) explains the recent constitutional amendment and the historical context behind this firmly non-partisan decision.

The renewed blockade of the Gaza Strip has now lasted for weeks, with the Israeli military being accused of deliberately starving the civilian population. Following up on the interview with TOM DANNENBAUM (ENG) in our last editorial, ROSA-LENA LAUTERBACH (GER) argues that the denial of life-saving humanitarian aid to civilians constitutes a violation of humanitarian law.

The Israeli government may also violate domestic administrative law. The government has been trying to dismiss both its Attorney General, Gali Barahav-Miara, and the Head of the Internal Security Service, Ronen Bar. ALON HAREL (ENG) explains what these attempts mean for Israeli Constitutionalism.

Meanwhile, Turkey is trying to dismiss its opposition – not by defeating it outright but by replacing it: LOQMAN RADPEY (ENG) analyses how Erdoğan seeks to keep the pro-Kurdish Peoples’ Equality and Democracy Party close enough to fragment the Turkish opposition.

Lawyers and bar associations in Turkey have also come under pressure. The court case against the Istanbul Bar Association, which led to the dismissal of its executive board and the criminal prosecution of board members, is another troubling example of this pressure. GÜLÇİN BALAMİR COŞKUN and ERTUĞ TOMBUŞ (ENG) show how the case exemplifies the way authoritarian regimes increasingly criminalise lawyers and professional organisations that speak out against rights violations.

Bangladesh, too, seems to be at a crossroads after its authoritarian leader, Sheikh Hasina, was ousted last year after mass protests. Tasked with the mandate of “rebooting democracy,” the Constitutional Reform Commission has proposed sweeping changes, including restructuring the legislature from a parliamentary to a semi-parliamentary system with moderation. ARAFAT HOSEN KHAN (ENG) provides an overview.

Sweeping changes also passed the German Bundestag after weeks of debating the make or break for the debt brake. Now, the changed Constitution provides a significantly expanded scope for policy-making and borrowing by the federal and state governments in the coming years. PHILIP MATUSCHKA (GER) observes that the changes raise several unanswered questions and contain linguistic ambiguities that will need further legislation.

Speaking of linguistic ambiguities: The UK Supreme Court now unanimously held that, under the Equality Act, the meaning of the word “woman” must be restricted to “biological” women, and does not include trans women. SARTHAK GUPTA (ENG) warns that the decision may undermine the UK’s equality law framework and marks a troubling regression in gender rights.

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On 3 April 2025, Advocate General de la Tour handed down his Opinion in C-713/23, Wojewoda Mazowiecki, a case that further advances the path opened by Coman on the protection of rainbow families through the exercise of free movement and EU citizenship rights. FULVIA RISTUCCIA (ENG) explains the Opinion and demonstrates where the AG could go even further.

A big question for big tech is now before a US District Court: Has Meta violated antitrust laws by acquiring WhatsApp and Instagram? SARAH HINCK (ENG) examines the landmark case and compares it to Europe’s evolving merger control approach.

Europe’s approach to digital services is also evolving. The Digital Services Act has been in force for over a year now. Will its regulatory framework withstand the growing political influence of tech giants? NIKOLAUS VON BERNUTH (ENG) assesses the risks the DSA faces as platforms increasingly act outside the regulations.

The DSA is just one of many examples illustrating how “primacy is an ‘existential requirement’ of EU law”, as Pierre Pescatore noted in 1973. Illiberal governments and captured courts are another (more consequential) one. Considering the new Opinion of AG Spielmann in Case C-448/23, GIACOMO DI FEDERICO (ENG) argues that the ECJ should make it clear that there is little room for either.

The German State of Thuringia is not (yet) struggling with a captured court, but with a blocked judicial appointment committee instead – a situation that is becoming increasingly untenable. JULIANA TALG and FABIAN WITTRECK (GER) explain why the justice minister’s proposed solution is a dead end, and what an effective counter-strategy might look like.

Latin America’s long struggle with judicial independence makes for valuable lessons in this regard. In an interview with the editorial team of our partner Agenda Estado de Derecho, MARGARET SATTERTHWAITE(ENG), United Nations Special Rapporteur on the independence of judges and lawyers, explores innovative solutions and challenges facing justice systems in Latin America and beyond.

In another interview with our partner AED, OSVALDO ZAVALA GILER (ENG), the first Latin American ICC Registrar, talks about global justice, cyber threats, and Latin America’s key role in strengthening the Court’s mandate.

This week, we have concluded our symposium on “Intellectual Property and the Human Right to a Healthy Environment” (ENG), edited by Elena Izyumenko. EVA MEYERMANS SPELMANS sets out who is responsible for the protection of human rights from climate change within the (fast) fashion industry and analyses the EU strategy. MARTIN SENFTLEBEN adds on by looking at legal solutions supporting fashion upcycling that is currently being thwarted by trademark protection. Similarly, IRENE CALBOLI analyses the legal challenges against independent upcyclers based on the argument that their products violate intellectual property rights. PÉTER MEZEI adopts a narrower focus and reviews how upcycling might be approached from a copyright perspective. LÉON DIJKMAN looks at how patent law may contribute to or hinder the technologies and innovation needed to conserve a healthy environment. HEIDI HÄRKÖNEN assesses the moral rights of authors and links their copyright protection to sustainable development and the circular economy. Finally, ELENA IZYUMENKO concludes with a reflection on balancing intellectual property protection with the human right to a healthy environment.

This evening, the Pope’s coffin will be closed and sealed; the funeral ceremony begins tomorrow. On Tuesday, the cardinals will meet to set the date for the conclave. Incidentally, the conclave begins with the words “extra omnes”: everyone out, except the cardinal electors. Sometimes, international law feels a bit more extra omnesthan erga omnes, more exclusive than universal, doesn’t it? But then again, Vladimir Putin won’t be attending the ceremony – thanks to the outstanding arrest warrant from the International Criminal Court, which could make his visit end in a Belgian prison cell.

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Take care and all the best!

Yours,

the Verfassungsblog Team

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