“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
Trump Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett apparently joined Chief Justice Roberts and Justices Samuel Alito and Clarence Thomas in an unsigned order that stayed a lower court preliminary injunction requiring that immigrants receive notice and an opportunity to be heard before they can be deported to third countries. The result is to subject such immigrants to possible mistreatment and torture without any due process. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson strongly dissented in the June 2025 shadow docket ruling in Department of Homeland Security v DVD.
What happened in this case?
As part of its more aggressive tactics concerning immigration, the Trump Administration has sometimes sought to deport immigrants to third countries, other than their home countries, that are willing to take them. Serious concerns have been raised, however, about whether some of these countries would subject the immigrants to mistreatment and torture, in violation of the international Convention Against Torture. As part of significant litigation on the issue, a federal judge in Massachusetts entered a preliminary injunction requiring notice and an opportunity to be heard concerning claims of possible torture before an immigrant can be deported to a third country.
The government has resorted to various tactics to try to get around or defy the injunction, and has also appealed it on the merits to the First Circuit. In addition, the government has sought to stay the preliminary injunction so that it can continue third country deportations without meaningful notice while the litigation continues. Both the district court and the court of appeals declined the request, so the Administration sought an immediate stay from the Supreme Court on its “shadow” docket, with only limited briefing and no oral argument.
What did the three Trump justices and the rest of the Court do and why is it harmful?
In a one-paragraph unsigned order with no explanation, the Court stayed the preliminary injunction against the Administration while the litigation continues. The ruling was apparently issued by the three Trump justices, along with Chief Justice Roberts and Justices Alito and Thomas, The result is that the Administration can continue its practice of deporting immigrant to third countries without notice or opportunity to be heard.
Justice Sotomayor wrote an extensive dissent, joined by Justices Kagan and Jackson. She carefully catalogued the history of what has occurred and how the Trump Administration actions violate federal law and the Constitution. She criticized the majority for effectively “rewarding lawlessness” by granting the stay. As the executive director of the National Immigration Litigation Alliance put it, the Court’s order “strips away critical due process protections” that have been safeguarding immigrants “from torture and death.”
The stay ruling means that until and unless there is a contrary ruling on the merits, the Trump Administration can continue to deport immigrants to third countries without adequate notice or opportunity to be heard, harming unknown numbers of individuals. The case also illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.