A U.S. Supreme Court Opinion That Could Avert a Constitutional Crisis

Opinion|When the Supreme Court Spoke With One Voice

In an extraordinary, if perhaps temporary, rebuke to the Trump administration, the Supreme Court issued an order at around 1 a.m. on Saturday forbidding the government from deporting a group of Venezuelan nationals under the Alien Enemies Act.

The ruling, by a presumed seven-to-two vote, signaled genuine fury at the failure of Trump officials to abide by the law and, even more to the point, the directives of judges, including those on the Supreme Court.

The federal judiciary is being forced to confront a fundamental question: what to do when its orders are defied. This is not the first time that the court has confronted this question. A case from another point in American history — the postwar effort to desegregate America’s schools — offers a guide for the justices as they move forward.

On Thursday, Judge J. Harvie Wilkinson III of the Court of Appeals for the Fourth Circuit, in rejecting an emergency motion by the Trump administration to cease the legal effort to return Kilmar Armando Abrego Garcia to the United States, summed the issue up: “The government is 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,” Judge Wilkinson, a Ronald Reagan appointee and conservative icon, wrote.

In his opinion, written for a three-judge panel, Judge Wilkinson cited a case that took place 67 years ago. Cooper v. Aaron arose after the Supreme Court’s rulings were disregarded. In the aftermath of the court’s unanimous 1954 decision in Brown v. Board of Education, a year later, in a second opinion known as Brown II, the court hedged on enforcement of its decision, ruling that school boards must desegregate “with all deliberate speed,” a purposely vague formulation.

In September 1957, a group of Black students, citing the Brown decision, won a Federal District Court judgment that allowed them to enroll at Little Rock Central High School in Arkansas. After Orval Faubus, the state’s governor, used the State National Guard to stop nine Black students from going to school, President Dwight Eisenhower in response ordered the Army’s 101st Airborne Division to force compliance with the District Court ruling and Brown.