How to win at the Supreme Court and how to lose.

It's easier than you might think: Knowing law is important; being level-headed, modest and trustworthy is more important.

Over the last few days, the Trump administration has had two cases decided at the Supreme Court. Paul discussed each, here. In the first case, the administration technically (but importantly) won, as the High Court held 5-4 that the federal habeas statute requires the aggrieved litigant to bring his case in the district where he is being held. That meant in Texas rather than DC, hence frustrating the judicial overreach of center-left US District Judge James Boasberg. Paul wrote:

The administration claims victory in the case because the Court vacated Boasberg’s orders, having deemed Washington D.C. the wrong venue for the plaintiffs to challenge their deportations. But though the Supreme Court ruled that Boasberg lacked jurisdiction, it agreed with him that the Trump administration cannot deport migrants without due process….

By vacating Boasberg’s orders, the Court avoided a direct confrontation with the administration. But it seems like just a matter of time until the confrontation comes. At that point, we’ll see whether it’s the executive or the judicial branch (or neither one) that gives an inch.

The more direct, but still not entirely head-on, confrontation came in today’s case, decided 9-0 and described by the WSJ as follows:

The Supreme Court told the Trump administration to seek the return of a migrant mistakenly sent to a Salvadoran prison, rebuffing government claims that it need do nothing to remedy its error.

There were no dissents noted in the order Thursday, which directed the government to take steps to bring Kilmar Abrego Garcia, 29 years old, back to the U.S. from the maximum security facility it sent him to on March 15.

In truth, neither case was difficult. In the first, the federal statutory language governing habeas is clear that the prisoner’s suit must be brought in the jurisdiction where he is being held, and that was the key point, the four dissenters (Justice Barrett and the three liberals) for all their might notwithstanding. But there was something else going on as well, something that deserves attention for those wondering how the administration should approach the numerous future cases that will arise during its vastly stepped-up deportation efforts.

The something else was that the government presented its first case in the Supreme Court with decency, modesty, and a strong dose of common sense. As a very bright lawyer (who does not want attribution) wrote to me:

[T]he key to the government's success in the Alien Enemies Act case was that it did give more than an inch. In its reply brief filed in connection with the application for the stay, the government said several important things that I don't think it said in its filings below:

1) "This case is not about whether TdA [violent gang] members subject to removal under the Alien Enemies Act get judicial review; they obviously do."

2) "In the meantime, by insisting on proceeding with APA claims in the District of Columbia—not individual habeas proceedings in the Southern District of Texas—respondents [the gang members sought to be deported] are depriving the proper forum of the chance to flesh out the scope of habeas review and to start resolving individual challenges in an orderly way. By persisting with an unlawful class action, respondents also inflict accumulating harms on absent class members, who risk being estopped from pressing habeas claims by virtue of being part of this class action. ... "the government acknowledges that the five named plaintiffs would have ample opportunity to challenge their designations under the AEA if they filed habeas petitions in Texas instead of pressing a misbegotten D.C. class action"

3) "Finally, it should go without saying that the United States’ position is to abhor torture, not to invite brutalization. See Opp. 4-5. The United States has ensured that removed aliens would not be tortured and would never remove any alien to El Salvador for detention in CECOT if it believed that doing so would violate the United States’ obligations under the Convention Against Torture."

The Supreme Court took note of all of those points in adopting the government's argument that habeas not the APA was the appropriate mechanism for bringing the challenge.

The take-away seems clear enough: The government’s SCOTUS lawyer, who has also succeeded in getting the other stays, was able to get the administration to make necessary and common sense concessions. Some might call this “wussing out.” But it has another, better name: Winning.

Contrast that with today’s unanimous loss. The WSJ reported the administration’s position as follows:

Abrego Garcia entered the U.S. without authorization from El Salvador while a teenager. A 2019 immigration court order had forbidden repatriating him, after finding he faced threats from a local gang that targeted his family’s pupusa food business.

The administration maintained that its only error was sending him to El Salvador rather than to a third country, and that federal courts had no power to command officials to retrieve him once he was in custody by a foreign government overseas….

In his Supreme Court appeal, Solicitor General D. John Sauer characterized [Judge] Xinis’s order as usurping Trump’s power to conduct foreign affairs:

While Abrego Garcia may have been removed by mistake, “that does not license district courts to seize control over foreign relations, treat the Executive Branch as a subordinate diplomat, and demand that the United States let a member of a foreign terrorist organization into America tonight,” Sauer’s brief said.

Now it’s true that the lower courts erred in directing the executive branch point-blank to “effectuate” Garcia’s return. The Supreme Court correctly smoothed that over, ruling that “the intended scope of the word ‘effectuate’ in the District Court’s order was unclear,” and should be construed to mean “facilitate.” That much seems obvious; it goes without saying to anyone with his head screwed on, liberal or conservative, that no court could order the President to, say, go to war if the receiving country balked at handing over the detainee it had in its jurisdiction simply as a result of the American government’s administrative error.

But the basic point remains. What on earth was the administration thinking when it argued that it had no obligation to make at least some sort of serious attempt to correct its own mistake? And to push this bizarre point with an over-the-top argument that for the judicial branch to require this was to “license district courts to seize control over foreign relations [and] treat the Executive Branch as a subordinate diplomat”?

Tip to DOJ: If you don’t want to lose 9-0, don’t go over the cliff in your language when it was your own mistake that caused the problem to begin with.* This is true in any event, but especially true where, as here, you’ll have lots more deportation cases before the same Court.

I spent most of my career arguing appellate cases. The most valuable asset you have in court is not your legal knowledge, although of course that’s very important. The most valuable thing you have is the court’s trust in your honesty and decency.

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* This is, obviously, a serious matter, but it brings to mind a comical story. It’s said that, when John Roberts was the go-to Supreme Court advocate in DC, a wealthy client retained him to push a pretty bad argument that had lost in the court of appeals. Roberts advised him that it was a long shot, but the client insisted and was willing to pay plenty. Miraculously, Roberts got the High Court to agree to review the case. Not surprisingly, however, the oral argument went badly, and when the decision came down a few months later, the client’s case lost 9-0. Furious, the client called Roberts and demanded, “How could you lose nine Supreme Court Justices? Roberts replied, “Because there only are nine.”