JUSTIN EVAN SMITH: Progressives Find Religion On The Shadow Docket

In an unsigned, late-night order, the justices issued an emergency stay halting the deportation of certain Venezuelan migrants under the Alien Enemies Act – a 1798 statute the Trump administration had controversially invoked. The case lacked a full factual record. No oral arguments were held.

Justice Samuel Alito dissented. And while progressives quickly caricatured his brief opinion as anti-immigrant, the substance of his dissent had little to do with immigration and everything to do with process. His warning was plain: A court that acts “literally in the middle of the night” on untested claims and incomplete records risks its own legitimacy – no matter how noble the outcome may seem. (RELATED: Justice Alito ‘Stunned’ By Majority’s Failure To Crack Down On ‘Judicial Hubris’ Targeting Trump Admin)

The critique wasn’t ideological. It was institutional.

What Alito defended was not executive power, but judicial integrity. He objected to the method, not the result. He argued, quite reasonably, that the court has a responsibility to hear both sides, develop a factual record, and deliberate before intervening in politically sensitive, legally complex matters. Skipping those steps, even in service of a seemingly just cause, is a dangerous precedent.

That was the argument progressives themselves made during the Trump years. When the Supreme Court issued emergency rulings to reinstate controversial policies or reject COVID-era voting accommodations, liberal scholars and journalists blasted the shadow docket as opaque and undemocratic. Justice Elena Kagan, writing in dissent in a 2021 emergency ruling, accused the majority of turning the emergency docket into “a place for major decisions with no reasoned explanation.”

But that concern seems to have evaporated now that the political outcome has flipped.

If you believe the shadow docket undermines public trust, that belief shouldn’t hinge on who benefits from the ruling. If you believe the court must proceed with deliberation and transparency, that belief can’t be optional. Yet with this latest ruling, we’ve seen just how easily process arguments are cast aside when the outcome is convenient.

Alito’s dissent flips the usual script. He isn’t attacking due process – he’s defending it. And not just for migrants or for the executive branch, but for the judiciary itself. If the court wants to preserve its legitimacy, it can’t claim the moral high ground while bypassing the procedures that give its rulings weight.

This isn’t a hypothetical concern. A court that behaves like a political actor, issuing decree-like orders based on vague allegations and one-sided accounts, will soon be treated like one. And when that happens, the institutional authority the court depends on will erode from both sides.

None of this is to say the court can never act in an emergency. But there is a difference between urgency and incaution. The court’s emergency powers should be used sparingly and with caution, especially when the law is unsettled and the facts are unclear.

It’s easy to dismiss Alito’s dissent as just another conservative objection. But that misses the point. He wasn’t warning about immigration. He was warning about the court.

Process matters. Even when it’s inconvenient. Especially when it’s inconvenient.

This article was originally published by RealClearPolitics and made available via RealClearWire.

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