Four thoughts in no particular order. 1. There is now sufficient evidence for the courts to presume the Federal Government is acting in bad faith. The DOJ under Bondi (as with DHS under Noem and the FBI under Patel) deserves no deference and no benefit of the doubt. 2. We should all be grateful that the ACLU lawyers are supremely talented, strategic, and dedicated. 3. History will not be kind to Alito and Thomas. It is one thing to be an activist judge who interprets (some would say bends) the law to achieve a desired outcome. It is entirely different to be an activist judge who creates facts either not in evidence or contrary to those in evidence to achieve a desired outcome. 4. While I acknowledge the importance of process and procedure, I will never understand outcomes in which a procedural technicality punishes a defendant. Isn’t the whole point of process to protect against a wrongful punishment?
The "Jurassic Park without the dinosaurs" metaphor is clever. One could even take it further by imagining the dissent at criticizing the violation of park rules by and going outside the approved path, but not even mentioning that they only did so because of the necessity of fleeing the loose maneating dinosaurs making remaining on the usual path imminently hazardous. "Going the normal way would have gotten us killed!"
I usually like Blackman at Volokh, but I think he's been unfair in presenting the full context of what led to the extraordinary SCOTUS decision here.
Blackman has squandered any credibility he ever had. If he wanted to be taken seriously, he'd respond to Adam's argument. But he's too busy licking boots.
While I certainly disagree with Blackman here, I think this one was out of character for him, and "squandered any credibility" is definitely going too far. Even putting aside the very important broader context, this case is still very special in a lot of ways, and people are bound to interpret things differently based on incomplete information.
Like with bail, the problem here is "flight risk", as it were. The extreme-time-pressure element for the first hearing at the district court level with the risk of loss of jurisdiction for delay just seems unique. The party in the position to put everyone's minds at ease about that was the administration, and it failed to do so, but few people understand how critical a factor that is to the story. Using the "Jurassic Park without the dinosaurs" metaphor again It would be like seeing the dinosaurs but not seeing Dennis Nedry hack and sabotage the security system. "There are dinosaurs on the loose! Why doesn't the JP security center just lock up the cages and make everybody safe again?"
I think the issue here is that Blackman either wasn't reading or taking seriously the ACLU's arguments for why it felt it was backed into a corner which justified the necessity for making such extraordinary motions, combined with, let's face it, a lack of candor on the part of SCOTUS itself. SCOTUS could have said, "Look people, we're gonna level with you for once. We are just never gonna accept the principle of 'deporting quickly can moot court jurisdiction before trial.' We're gonna color outside the lines a little here to just freeze this particular case in place without prejudice, because otherwise the administration will just do this all the time, every time, and, more importantly, we'll look like helpless fools who knowingly let that happen. So nah."
Instead they did the SCOTUS thing and colored outside the lines while pretending to be coloring inside. Now, I know we are all supposed to be post-modernist sophisticated lawyers of the world and so forth, "well, that's the game, all the savviest people already know all this, there's no better alternative to institutional legitimacy, and you're not cool if you're spelling it out." Ok, but it's still kind of annoying. And if someone is really hypersensitive to the playing of these moves in the game, I can easily see how they would fixate on the surface level jurisprudential gymnastics and wouldn't give the backstory as much credit as it deserves.
Great analysis. To read it is to be horrified at the ethics of the government lawyers. Prosecutors are not allowed to use trickery to imprison defendants. Cases of wrongful convictions on less egregious conduct have resulted in seven figure settlements and judgments repeatedly in Illinois.
Thanks for the detailed analysis of this case. Nice to see agreement among experts across the ideological spectrum. It gives me a bit of faith.
Alito's dissent and Ho's "concurrence" (dissent in all but name) both seem to ignore the harm that potentially would be suffered by the plaintiffs in this case in the absence of a temporary injunction compared to the harm the government might suffer if the injunction were granted. Absent the injunction, the plaintiffs would have been removed* from the U.S. and, according to the government, forever lost any rights to recourse in U.S. courts. That seems, by definition, to be irreparable harm. By contrast, the government, who already had the plaintiffs in custody would merely have to wait to remove them and would be required to follow the April 7 Supreme Court ruling describing the due process notice from the government the detainees must receive. The harm to the government here seems minimal if not nonexistent. As a non-lawyer, I'm not sure that this enters into consideration, but it sure seems like it should.
*I use forms of the word "remove" as opposed to "deport" both because the April 7 SCOTUS ruling says "removal" and because other legal scholars have distinguished removal to a third country from deportation as return to their native country. (Sorry I can't recall which one(s) said this as I read/listen to Steve Vladeck, Melissa Murray, Leah Litman, Kate Shaw, Dahlia Lithwick and their podcast guests.)
Also a separate thanks to you and your colleagues at Jenner & Block for defending Harvard. As a neuroscientist with friends there as well as at many other US universities who never thought we'd need legal defense for our colleagues, students and research, we appreciate your commitment to justice and the rule of law.
Excellent as always. I'm glad people are pointing out that Alito's willingness to die on the hill of procedure would have given the Trump administration a green light to keep using the strategy of "deport, then argue lack of jurisdiction."
I have been particularity struck with the idea, as expressed by Judge Ho and some of the folks at Volokh, that SCOTUS somehow "disrespected" the judge by taking the case and ruling another way, before the district issued an order. The district judge, like you said, was operating with the information that he had at the time, which he assumed (with good reason) to be good information. It just turned out that the government was willfully misrepresenting its case, which SCOTUS caught. I have no idea how that has turned into this narrative that SCOTUS has impugned the reputation of the judge, or some such nonsense. Its not as if they called him a hack or something. Taken to its logical extreme, do the justices ruin the reputation of every district court judge whose rulings they overturn, or send back on remand?
Adam, thanks for your insight on this. I am coming to this a bit late, but I have been thinking about the jurisdictional issue in *A.A.R.P.* and I am wondering why there is a jurisdictional issue (from the Supreme Court's perspective) here at all. The dissent seems to assume that the Supreme Court's power to issue a stay of deportation depends on whether the court of appeals had jurisdiction to hear an appeal from the denial of an injunction by the district court.
You make a good case that the district court's inaction was a functional denial under the circumstances, which is one way to get there. But does the Supreme Court's power to issue a stay in aid of its jurisdiction (under the All Writs Act, although it would probably have inherent power anyway) actually depend on an appealable judgment in the district court? Doesn't the Court have power to issue an stay now to protect its later jurisdiction over a final judgment that will be entered at some later time? It's like a last-minute application for a stay of execution in a capital case: I don't think it's required that the district court have denied the habeas petition, just that it have denied the stay.
Of course it is and should be extremely unusual for the Court to intervene before a district court enters an appealable judgment. But I think that's a prudential rule, not a jurisdictional one. (And the prudential situation here was very unusual for all the reasons you give.)
But if there's a Marbury problem, it would be in the direction of the injunction to a nonjudicial officer right? A writ of mandamus or prohibition could certainly be issued, even before judgment in the district court, in aid of the Court's ultimate jurisdiction over a later final judgment (that's Ex Parte Peru). So the argument would be at most that the Court should have said: "We issue a writ of mandamus directing the district court at once to enjoin the government from doing such and so."
Yeah, I take the point. The plaintiffs' filing did seek an "emergency injunction or writ of mandamus," and the Supreme Court did have jurisdiction to issue a writ of mandamus directed to the district court. The issue wasn't really litigated in the briefs though.
I was happy to learn that your firm prevailed in its challenge of the execution order that had targeted it.
This post in particular shows the importance of independent counsel when confronting the government.
Any client wise enough to hire you and your team clearly has a leg up because of your fairness (I have yet to read a partisan stroke in these pages which focus only on law and nothing else), honesty (I’m thinking in particular here of your admission that you struggle to wrap your head around granting temporary relief to a class that has yet to be certified by a court), diligence (as evidenced only by the thoroughness of the research for this blog), and intelligence (which is apparent not only in your analysis but also in your judgment—here the reason you called the Colorado challenge to Trump’s appearance on that state’s ballot comes the way you did to mind).
Double hearsay argument is wrong. Under FREv 804 a statement by a party is an admission that can be testified to by anyone who heard it. On the issue of reasonableness of fear of deportation the statement of the government is not being offered for its truth but to show it was said. Double non hearsay. Too bad Breyer retired. He taught evidence.
Darkness at Mid Day Justice, Habeas, and the Integrity of the Courts
Over 40 years ago, my high school teacher, Norman Wheeler, would begin class with a familiar refrain: “It all goes back to the Magna Carta.” He was right. The core protections of our legal system—especially the right to challenge unlawful detention through habeas corpus—are rooted in centuries of legal tradition.
That insight feels especially relevant today.
In his Substack post, Fumbling in the Dark: The Winding Tale of A.A.R.P. v. Trump (May 28, 2025), attorney Adam Unikowsky examines a crucial habeas case involving the government’s use of the Alien Enemies Act to deport certain Venezuelan nationals—without due process. Detainees were denied access to counsel, their identities withheld, and legal recourse obstructed.
The Supreme Court intervened with a rare temporary injunction, even before lower courts had ruled. While criticized by Justices Alito and Thomas and editorial voices, Unikowsky makes a persuasive case that the Court’s actions were not only legal—they were essential. The government’s strategy effectively blocked individual relief, making class action the only means to halt the deportations.
These concerns are not theoretical. In a recent podcast, former DOJ official Andrew Weissmann and NYU Law Professor Ryan Goodman reviewed disturbing examples of falsified government evidence, including a doctored image of supposed gang ties and a fabricated conspiracy about “White genocide” victims. Courts later found the evidence was knowingly falsified.
Together, Unikowsky’s legal analysis and the podcast’s revelations expose what happens when government power is exercised in the shadows. Without transparency, access, and an independent judiciary, constitutional safeguards—like habeas corpus—become paper promises.
Unikowsky rightly notes that Supreme Court rulings rarely "deliver justice" in the emotional sense—they resolve legal disputes. But in A.A.R.P. v. Trump, the Court did something more: it prevented a grave injustice and reasserted the judiciary’s role in safeguarding liberty.
As we confront new threats to judicial independence and legal accountability, this case serves as a vital reminder: law without access, and courts without independence, are not justice—they are its illusion.
Norman Wheeler had it right. It really does all go back to the Magna Carta.
Four thoughts in no particular order. 1. There is now sufficient evidence for the courts to presume the Federal Government is acting in bad faith. The DOJ under Bondi (as with DHS under Noem and the FBI under Patel) deserves no deference and no benefit of the doubt. 2. We should all be grateful that the ACLU lawyers are supremely talented, strategic, and dedicated. 3. History will not be kind to Alito and Thomas. It is one thing to be an activist judge who interprets (some would say bends) the law to achieve a desired outcome. It is entirely different to be an activist judge who creates facts either not in evidence or contrary to those in evidence to achieve a desired outcome. 4. While I acknowledge the importance of process and procedure, I will never understand outcomes in which a procedural technicality punishes a defendant. Isn’t the whole point of process to protect against a wrongful punishment?
The "Jurassic Park without the dinosaurs" metaphor is clever. One could even take it further by imagining the dissent at criticizing the violation of park rules by and going outside the approved path, but not even mentioning that they only did so because of the necessity of fleeing the loose maneating dinosaurs making remaining on the usual path imminently hazardous. "Going the normal way would have gotten us killed!"
I usually like Blackman at Volokh, but I think he's been unfair in presenting the full context of what led to the extraordinary SCOTUS decision here.
Blackman has squandered any credibility he ever had. If he wanted to be taken seriously, he'd respond to Adam's argument. But he's too busy licking boots.
While I certainly disagree with Blackman here, I think this one was out of character for him, and "squandered any credibility" is definitely going too far. Even putting aside the very important broader context, this case is still very special in a lot of ways, and people are bound to interpret things differently based on incomplete information.
Like with bail, the problem here is "flight risk", as it were. The extreme-time-pressure element for the first hearing at the district court level with the risk of loss of jurisdiction for delay just seems unique. The party in the position to put everyone's minds at ease about that was the administration, and it failed to do so, but few people understand how critical a factor that is to the story. Using the "Jurassic Park without the dinosaurs" metaphor again It would be like seeing the dinosaurs but not seeing Dennis Nedry hack and sabotage the security system. "There are dinosaurs on the loose! Why doesn't the JP security center just lock up the cages and make everybody safe again?"
I think the issue here is that Blackman either wasn't reading or taking seriously the ACLU's arguments for why it felt it was backed into a corner which justified the necessity for making such extraordinary motions, combined with, let's face it, a lack of candor on the part of SCOTUS itself. SCOTUS could have said, "Look people, we're gonna level with you for once. We are just never gonna accept the principle of 'deporting quickly can moot court jurisdiction before trial.' We're gonna color outside the lines a little here to just freeze this particular case in place without prejudice, because otherwise the administration will just do this all the time, every time, and, more importantly, we'll look like helpless fools who knowingly let that happen. So nah."
Instead they did the SCOTUS thing and colored outside the lines while pretending to be coloring inside. Now, I know we are all supposed to be post-modernist sophisticated lawyers of the world and so forth, "well, that's the game, all the savviest people already know all this, there's no better alternative to institutional legitimacy, and you're not cool if you're spelling it out." Ok, but it's still kind of annoying. And if someone is really hypersensitive to the playing of these moves in the game, I can easily see how they would fixate on the surface level jurisprudential gymnastics and wouldn't give the backstory as much credit as it deserves.
Great analysis. To read it is to be horrified at the ethics of the government lawyers. Prosecutors are not allowed to use trickery to imprison defendants. Cases of wrongful convictions on less egregious conduct have resulted in seven figure settlements and judgments repeatedly in Illinois.
Thanks for the detailed analysis of this case. Nice to see agreement among experts across the ideological spectrum. It gives me a bit of faith.
Alito's dissent and Ho's "concurrence" (dissent in all but name) both seem to ignore the harm that potentially would be suffered by the plaintiffs in this case in the absence of a temporary injunction compared to the harm the government might suffer if the injunction were granted. Absent the injunction, the plaintiffs would have been removed* from the U.S. and, according to the government, forever lost any rights to recourse in U.S. courts. That seems, by definition, to be irreparable harm. By contrast, the government, who already had the plaintiffs in custody would merely have to wait to remove them and would be required to follow the April 7 Supreme Court ruling describing the due process notice from the government the detainees must receive. The harm to the government here seems minimal if not nonexistent. As a non-lawyer, I'm not sure that this enters into consideration, but it sure seems like it should.
*I use forms of the word "remove" as opposed to "deport" both because the April 7 SCOTUS ruling says "removal" and because other legal scholars have distinguished removal to a third country from deportation as return to their native country. (Sorry I can't recall which one(s) said this as I read/listen to Steve Vladeck, Melissa Murray, Leah Litman, Kate Shaw, Dahlia Lithwick and their podcast guests.)
Also a separate thanks to you and your colleagues at Jenner & Block for defending Harvard. As a neuroscientist with friends there as well as at many other US universities who never thought we'd need legal defense for our colleagues, students and research, we appreciate your commitment to justice and the rule of law.
Excellent as always. I'm glad people are pointing out that Alito's willingness to die on the hill of procedure would have given the Trump administration a green light to keep using the strategy of "deport, then argue lack of jurisdiction."
I have been particularity struck with the idea, as expressed by Judge Ho and some of the folks at Volokh, that SCOTUS somehow "disrespected" the judge by taking the case and ruling another way, before the district issued an order. The district judge, like you said, was operating with the information that he had at the time, which he assumed (with good reason) to be good information. It just turned out that the government was willfully misrepresenting its case, which SCOTUS caught. I have no idea how that has turned into this narrative that SCOTUS has impugned the reputation of the judge, or some such nonsense. Its not as if they called him a hack or something. Taken to its logical extreme, do the justices ruin the reputation of every district court judge whose rulings they overturn, or send back on remand?
Adam, thanks for your insight on this. I am coming to this a bit late, but I have been thinking about the jurisdictional issue in *A.A.R.P.* and I am wondering why there is a jurisdictional issue (from the Supreme Court's perspective) here at all. The dissent seems to assume that the Supreme Court's power to issue a stay of deportation depends on whether the court of appeals had jurisdiction to hear an appeal from the denial of an injunction by the district court.
You make a good case that the district court's inaction was a functional denial under the circumstances, which is one way to get there. But does the Supreme Court's power to issue a stay in aid of its jurisdiction (under the All Writs Act, although it would probably have inherent power anyway) actually depend on an appealable judgment in the district court? Doesn't the Court have power to issue an stay now to protect its later jurisdiction over a final judgment that will be entered at some later time? It's like a last-minute application for a stay of execution in a capital case: I don't think it's required that the district court have denied the habeas petition, just that it have denied the stay.
Of course it is and should be extremely unusual for the Court to intervene before a district court enters an appealable judgment. But I think that's a prudential rule, not a jurisdictional one. (And the prudential situation here was very unusual for all the reasons you give.)
It might violate Marbury v. Madison though, I think that is the concern.
(I mean the actual holding of the case, i.e., the supreme court’s sole jurisdiction is appellate)
But if there's a Marbury problem, it would be in the direction of the injunction to a nonjudicial officer right? A writ of mandamus or prohibition could certainly be issued, even before judgment in the district court, in aid of the Court's ultimate jurisdiction over a later final judgment (that's Ex Parte Peru). So the argument would be at most that the Court should have said: "We issue a writ of mandamus directing the district court at once to enjoin the government from doing such and so."
Yeah, I take the point. The plaintiffs' filing did seek an "emergency injunction or writ of mandamus," and the Supreme Court did have jurisdiction to issue a writ of mandamus directed to the district court. The issue wasn't really litigated in the briefs though.
Adam,
I was happy to learn that your firm prevailed in its challenge of the execution order that had targeted it.
This post in particular shows the importance of independent counsel when confronting the government.
Any client wise enough to hire you and your team clearly has a leg up because of your fairness (I have yet to read a partisan stroke in these pages which focus only on law and nothing else), honesty (I’m thinking in particular here of your admission that you struggle to wrap your head around granting temporary relief to a class that has yet to be certified by a court), diligence (as evidenced only by the thoroughness of the research for this blog), and intelligence (which is apparent not only in your analysis but also in your judgment—here the reason you called the Colorado challenge to Trump’s appearance on that state’s ballot comes the way you did to mind).
Double hearsay argument is wrong. Under FREv 804 a statement by a party is an admission that can be testified to by anyone who heard it. On the issue of reasonableness of fear of deportation the statement of the government is not being offered for its truth but to show it was said. Double non hearsay. Too bad Breyer retired. He taught evidence.
Thankfully this SCOTUS—with 2 predictable exceptions—was unwilling to lend its imprimatur to a travesty, and thus delivered a measure of justice.
Darkness at Mid Day Justice, Habeas, and the Integrity of the Courts
Over 40 years ago, my high school teacher, Norman Wheeler, would begin class with a familiar refrain: “It all goes back to the Magna Carta.” He was right. The core protections of our legal system—especially the right to challenge unlawful detention through habeas corpus—are rooted in centuries of legal tradition.
That insight feels especially relevant today.
In his Substack post, Fumbling in the Dark: The Winding Tale of A.A.R.P. v. Trump (May 28, 2025), attorney Adam Unikowsky examines a crucial habeas case involving the government’s use of the Alien Enemies Act to deport certain Venezuelan nationals—without due process. Detainees were denied access to counsel, their identities withheld, and legal recourse obstructed.
The Supreme Court intervened with a rare temporary injunction, even before lower courts had ruled. While criticized by Justices Alito and Thomas and editorial voices, Unikowsky makes a persuasive case that the Court’s actions were not only legal—they were essential. The government’s strategy effectively blocked individual relief, making class action the only means to halt the deportations.
These concerns are not theoretical. In a recent podcast, former DOJ official Andrew Weissmann and NYU Law Professor Ryan Goodman reviewed disturbing examples of falsified government evidence, including a doctored image of supposed gang ties and a fabricated conspiracy about “White genocide” victims. Courts later found the evidence was knowingly falsified.
🎧 [https://lnkd.in/eH99Q2NZ]
Together, Unikowsky’s legal analysis and the podcast’s revelations expose what happens when government power is exercised in the shadows. Without transparency, access, and an independent judiciary, constitutional safeguards—like habeas corpus—become paper promises.
Unikowsky rightly notes that Supreme Court rulings rarely "deliver justice" in the emotional sense—they resolve legal disputes. But in A.A.R.P. v. Trump, the Court did something more: it prevented a grave injustice and reasserted the judiciary’s role in safeguarding liberty.
As we confront new threats to judicial independence and legal accountability, this case serves as a vital reminder: law without access, and courts without independence, are not justice—they are its illusion.
Norman Wheeler had it right. It really does all go back to the Magna Carta.
📚 Read Adam Unikowsky’s analysis:
https://lnkd.in/eeF82cwU
🎧 Listen to Weissmann & Goodman:
https://lnkd.in/eH99Q2NZ
Fumbling in the dark