Why? Who knows. It’s not as if the 6-3 majority of the Supreme Court explained its reasoning. In staying Boston District Judge Brian Murphy’s preliminary injunction against ICE removing aliens to third-party countries without notice or due process, those nifty/nasty details the Court previously admonished Kristi Noem to provide to Kilmar Abrego Garcia and others similarly situated, the Supreme Court did not consider it worthwhile to provide either explanation or guidance.

Or perhaps it did not because, well, there just wasn’t anything rational to say.

The application for stay presented to JUSTICE JACKSON and by her referred to the Court is granted. The April 18, 2025, preliminary injunction of the United States District Court for the District of Massachusetts, case No. 25–cv–10676, is stayed pending the disposition of the appeal in the United States Court of Appeals for the First Circuit and disposition of a petition for a writ of certiorari, if such writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of the Court.

Remarkably, the majority put in far more effort to explain the nuance of the stay’s termination than it did about the grant of the stay. Priorities. Although, given the efforts put in by Judge Murphy, and then the First Circuit, to address the law, one would have thought that the Supreme Court, as a matter of judicial courtesy if nothing else, would throw their inferior judges a bone. Nope. Nothing. Nada. And DHS was totally fine with it.

Tricia McLaughlin, a spokeswoman for the Department of Homeland Security, called the ruling “a victory for the safety and security of the American people.”

“D.H.S. can now execute its lawful authority and remove illegal aliens to a country willing to accept them,” she said in a statement. “Fire up the deportation planes.”

But Justice Sonia Sotomayor, with her posse, had plenty to say, and she was not fine with it. Not even a little bit.

In matters of life and death, it is best to proceed with caution. In this case, the Government took the opposite approach. It wrongfully deported one plaintiff to Guatemala, even though an Immigration Judge found he was likely to face torture there. Then, in clear violation of a court order, it deported six more to South Sudan, a nation the State Department considers too unsafe for all but its most critical personnel. An attentive District Court’s timely intervention only narrowly prevented a third set of unlawful removals to Libya.

Any of this sound vaguely familiar? The last sentence above is a bit generous, given that the removal of the six to South Sudan, and was in violation of Judge Murphy’s order, and yet, they were Djibouti-bound nonetheless. Problem?

Initially, there is a legal process to be followed before a person can be deported to a third country, an alternative available when the alien’s country of origin refuses to take him.

Federal law generally permits the Government to deport noncitizens found to be unlawfully in the United States only to countries with which they have a meaningful connection. 8 U. S. C. §1231(b). To that end, Congress specified two default options: noncitizens arrested while entering the country must be returned to the country from which they arrived, and nearly everyone else may designate a country of choice. §§1231(b)(1)(A), (b)(2)(A). If these options prove infeasible, Congress specified which possibilities the Executive should attempt next. These alternatives include the noncitizen’s country of citizenship or her former country of
residence. §§1231(b)(1)(C), (2)(E).

But that process requires time and effort on the part of the government, and that means they can’t just tell the alien at 5:45 in the afternoon, that they’ll be leaving on a jet plane for South Sudan at 9:35 the next morning. For the logistically challenged, there isn’t much the alien can do to challenge the removal overnight.

But a more significant implication arises from the government’s refusal to comply with the law and, when ordered by the district court not to violate the law, does so anyway.

The Government has made clear in word and deed that it feels itself unconstrained by
law, free to deport anyone anywhere without notice or an opportunity to be heard.

Unconstrained by law is one problem. Unconstrained by the order of a court is another.

The Due Process Clause represents “the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 646 (1952) (Jackson, J., concurring). By rewarding lawlessness, the Court once again undermines that foundational principle. Apparently, the Court finds the idea that thousands will suffer violence in farflung locales more palatable than the remote possibility that a District Court exceeded its remedial powers when it ordered the Government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled.

By granting the stay, the Supreme Court majority, without even the courtesy of an explanation, told the government that it is, de jure, unconstrained by law and, even worse, can ignore the orders of the court with impunity, and be rewarded for its lawlessness.

Justice Sotomayor focused on the harm that could be done to thousands by the denial of due process, the pass given the government on compliance with the law even if the district court was wrong in the scope of its remedial powers. But there is a graver concern that neither the majority, nor even the dissent, deemed sufficiently problematic to squarely address: When a court orders the government to do or not do something, the government can refuse, do as it pleases, and not only look forward to vindication on the issue of law, but a free pass on flagrant contempt for its violation of the court’s order. Fire up the deportation planes, no matter what a judge says.