In September the Supreme Court issued another of its unsigned “shadow docket” orders, in this case, Noem v. Vasquez Perdomo, airily authorizing immigration officers to detain anyone based on “the following factors or combination of factors: (i) presence at particular locations such as bus stops, car washes, day laborer pickup sites, agricultural sites, and the like; (ii) the type of work one does; (iii) speaking Spanish or speaking English with an accent; and (iv) apparent race or ethnicity.” As Duncan Hosie writes in “The End of Equity” for the NYR Online, “Without acknowledgment or justification, but with breakneck speed, the Court swept aside decades of Fourth, Fifth, and Fourteenth Amendment safeguards against unreasonable seizures and denials of equal protection.” Hosie traces the recent decisions of the Roberts Court—and its selective fidelity to “history and tradition”—to argue that there is “a striking asymmetry in how the Court evaluates the merits of equitable interventions…. In effect, the traditional balance of equities has been inverted: abstract and imaginary assertions of sovereign injury now outweigh concrete proof of immediate human suffering.”

A former Supreme Court and appellate litigator, as well as a clerk on the Ninth Circuit Court of Appeals, Hosie is now a legal scholar, writer, and a fellow at Stanford Law School. Since 2022 he has been writing about the American judicial system for the Review; he is also a contributor to The Atlantic,* The New Republic*, and The Washington Post, among other publications.

Last week I wrote to Hosie to ask him about the moral and constitutional crises facing the country, as well as the Court’s deference to the executive branch and how it has shaped immigration enforcement.

---

**Lesly Ramirez Melchor: ***Has following and writing about the Court at this moment tested your own faith in the rule of law, or renewed it in unexpected ways? *

**Duncan Hosie: **My faith in the rule of law has been tested by the Supreme Court and rehabilitated by the lower courts. Trump has enthralled the Court’s conservative justices, and their derelictions have emboldened him. Last summer, in Trump v. United States, they granted him unprecedented immunity from criminal prosecution for official acts, a short-term political windfall and a long-term structural enabler of the daily injustices emanating from the White House. This summer they eliminated district courts’ powers to issue nationwide injunctions just as these injunctions had become crucial bulwarks against his lawlessness, after four years of doing nothing as a handful of hard-right judges issued them freely against the Biden administration.

The justices’ collaboration—a mordant word, but an apt one given the slide into authoritarianism in our politics—is even more conspicuous on the shadow docket, where, in their haste to intercede on Trump’s behalf, they have abandoned any pretense of jurisprudential neutrality and procedural regularity. By consistently overturning preliminary injunctions against his abuses, they’ve created harm on four levels: reinstating egregious and often irreversible policies, inviting worse ones, frustrating the ability both of litigants to press their claims and lower courts to uphold legal principles, and legitimating the administration’s overt, intentional shattering of norms.

Yet my despair over the Supreme Court sits with renewed admiration for the district courts, which have largely illustrated the craftsmanship and the characterological dimensions of the rule of law. As a matter of judicial craft, they’ve issued rigorous and careful restraints on Trump after holding hearings, scrutinizing evidence, and applying precedent. My essay on the Los Angeles raids highlights the stark methodological differences between, on the one hand, two lower courts—which applied traditional modes of legal reasoning across 113 pages to create and then uphold the temporary restraining order—and the Supreme Court’s conservative bloc, which mustered four sterile sentences to give Trump sweeping new powers to profile and persecute immigrants and people who look like them. (Justice Kavanaugh wrote a concurrence defending the stay, but it was, to borrow a phrase from Erwin Chemerinsky, worse than nothing.)

The rule of law requires that judges balance temperamental institutional and social responsibilities. Judges transform the rule of law from an abstract norm into a living institutional practice through reason, courage, and dispassion, among other values. Halting everything from deportations without due process to deployments of the National Guard in Democratic cities, they’ve stood firm against the president and in support of the judicial branch. This resistance has been strikingly cross-ideological, spanning Trump appointees like Karin Immergut, Trevor McFadden, Thomas Cullen, and Tim Kelly to Reagan appointees like William Young and John Coughenour. If you want to see the rule of law in practice, just don’t look to the top court.**

The recent ICE raid on an apartment complex in Chicago surfaced many of the same injustices you described in Vasquez Perdomo. Does this escalation—the scale of the raid, the fact that a number of American citizens of color, in addition to migrants, were swept up in it—test any of the Court’s conclusions? Not to say that they would be inclined to reverse course, but have any of ICE’s actions since the Court’s ruling raised new substantive issues?

Every significant Supreme Court ruling sends ripples through society. Some are subtle, snowballing into effects that justices and litigants cannot fully anticipate. Other ripples are deliberate, with the Court, in moves big and small, steering law and legal culture toward predetermined outcomes. The recent events in Chicago illustrate both the foreseeable and unforeseeable consequences of Vasquez Perdomo. The same day the Court’s order came down, the Trump Administration announced the new operation in Chicago predicated on the same maximally aggressive tactics that had been employed in Los Angeles. The Court plainly encouraged the administration to escalate, though the speed, scale, and severity of the inevitable escalation were unknowable.

Vasquez Perdomo was never truly about Los Angeles. It was about whether Latinos would be treated as equal citizens, whether the administration could exercise unchecked power over them, whether legal, civil, and civic resistance would hold against an authoritarian test designed to gradually normalize extralegal measures. The Court gave a green light to a familiar authoritarian tactic for consolidating power—from Hugo Chávez’s Venezuela to Viktor Orbán’s Hungary, early despots often test how far they can go—in a country long riven with racial conflict and antinomies. No one should be surprised that upholding the indiscriminate targeting of Latinos in Los Angeles precipitated the zip-tying, beating, and lengthy detention of black people in Chicago.

Justice Kavanaugh’s concurrence in Vasquez Perdomo is particularly revealing. It conveys not only contempt for those ensnared in the ICE dragnet but also unmistakable enthusiasm for Trump’s immigration tactics, complete with gratuitous rhetorical attacks on Biden’s immigration policies. As judicial writing, it is unsettling. As a signal of fealty to the executive who appointed him to the Court, it is unambiguous. The other conservative justices, by not speaking, can plausibly deny responsibility for the Chicago abuses in a way Justice Kavanaugh cannot.

You note the irony that a Court obsessed with “history and tradition” has disregarded the Constitution’s explicit recognition of “Cases, in Law and Equity.” How do you explain this selective application of originalism? Do you see a new interpretive methodology or theory emerging on the right to accommodate these contradictions, or are they flying by the seat of their robes, so to speak?

Here and elsewhere, the problem is not the Court’s selective application of originalism but that the application of originalism is inescapably selective. In the pages of this magazine, I have argued that, given the indeterminacy and complexity of both history and language, “originalism does not, and cannot, provide an analytically rigorous standard that consistently produces principled results acceptable to contemporary society.” Instead, I see originalism as a political strategy; in reflecting on the modern creation of the Second Amendment as an individual right to keep and bear arms, for example, I wrote that “the pretense of applying the inexorable commands of the framers gives cover” for the imposition of antediluvian and dangerous views.

We should accordingly speak of originalism in the language of politics, not of law, and I try to do so in my writing. For example, I have argued that the jurisprudence of Justice Thomas on the Eighth Amendment, which guards against “cruel and unusual punishments,” is an “originalist campaign”—intentionally invoking the political connotations of “campaign.” And in analyzing Governor DeSantis’s remaking of the Florida Supreme Court, I hoped to illustrate how originalism can function as a screen for the imposition of a political agenda, not as a coherent ideology or workable methodology. In short, originalism never does much analytic work but instead serves as a pretext for the application of political values and ends. (The same, of course, can be said for voguish efforts to reason from “liberal originalism.”)

The attempt to graft an originalist reading onto Article III, Section 2’s grant of the “judicial power” to hear “all cases, in law and equity” encapsulates many of these challenges. Equity in the Anglo-American legal tradition arose to create flexible remedies that could be responsive to evolving circumstances and challenges. Circumscribing “equity” to a single temporality—the immediate historical moment when the Constitution was written—is self-contradictory and curious. And equitable law has grown in ways unimaginable to those who drafted the Constitution or voted for the Judiciary Act of 1789, which defined the scope of federal judicial authority. As Mila Sohoni has observed, “a strictly originalist approach to the judicial power in equity” would require jettisoning forms of equitable relief embodied in “a century-plus of practice,” including forms of plaintiff-protective injunctions that the Court’s conservatives routinely uphold against conduct they find objectionable.

How does the Constitution restrain a Court that no longer recognizes its own limits? What forms of redress do Americans have when the judicial branch seems to sanction unconstitutional conduct by the executive?

The Constitution does not save itself. It survives only through the vigilance of those who live under it. That work is hard, continuous, impermanent, and prone to setbacks. My legal scholarship aims to broaden our understanding of constitutional politics beyond the Court and the courts to a wider arena, where the Constitution lives or withers in public practice. This approach develops from the work of Robert Post and Reva Siegel on “democratic constitutionalism”: in decentering the judiciary, it can channel public participation into productive spheres that sustain democracy and create constitutional meaning, ranging from local elections and referenda to grassroots organizing.

Those fora are the sites of civic contestation, democratic deliberation, and collective self-rule, in particular arenas of majoritarian electoral politics, but also spaces of public dialogue like classrooms, social media, and communal associations.Today, they are fragile and beleaguered. They have been battered by an administration that represses free speech and undermines the rule of law, and they have long been eroded by a Court that subjugates the political to private economic power and racial hierarchy, most consequentially through its gutting of campaign finance limits and the Voting Rights Act. Yet despite these assaults, these imperfect arenas still exist—and they have never existed perfectly in America.

If war is too important to be left to the generals, then the Constitution is too important to be left to the justices, or to lawyers, for that matter. The American legal profession’s response to Trump’s return has been, at best, mixed. Compare the formidable public defenders and immigration-rights attorneys on the frontlines of the resistance to the affluent Big Law partners who have capitulated to Trump’s authoritarian demands. Lawyers designed the administration’s efforts to attack the foundations of academic freedom, democratic governance, and immigrant rights; lawyers are also the people challenging them in court. The civic labor that allows the Constitution to endure falls to people of all backgrounds, because its meaning cannot be monopolized by a complicit Court, illiberal president, or fractured profession.

*You’ve written that the Court increasingly uses the shadow docket as a way to quickly make rulings that favor the government. Given what’s unfolding in Portland and Chicago—with lower courts questioning or staying federal deployment orders—do you think we’re seeing a rare moment of judicial resistance, or will it end up reinforcing the same pattern of deference that you described? *

Franz Kafka has a brief parable called “Before the Law” that probes the enigmas of legality. A man approaches a great gate guarded by a doorkeeper; beyond lies the law, hidden from view. The man waits for years to gain access to the law, his health deteriorating, and is never granted passage. I have long thought of the Court’s conservatives as doorkeepers. I now see the mysterious law behind the gate as Trump himself.

It’s possible the Supreme Court will intervene to stop these disturbing deployments of federal troops in American cities, which are among the most serious of Trump’s many escalations. On Wednesday, the justices asked the litigants in the Chicago case for additional briefing on an important legal question, a modest but potentially meaningful sign they are reviewing the case closely. But I put little faith in these doorkeepers. This is especially true because lower appellate courts have already demonstrated ideological polarization in their decisions on the National Guard cases, and the same polarization will likely play out, on 6–3 lines, on the high bench.

One reading of our moment (which I don’t share) comes from legal scholars who believe the Court is saving its institutional capital for a showdown with the administration, mindful that it wields neither “the sword” nor “the purse,” as Alexander Hamilton famously wrote in Federalist 78. I don’t expect a showdown, but I do think the Court will strike down *something *at some point. The Court is far more likely to act in areas that conflict with the pro-business agenda of the conservative legal movement—like the case challenging tariffs, which has the support of important figures on the traditional legal right—or in defense of principles so foundational they become truly unthinkable to abandon, like birthright citizenship under the Fourteenth Amendment. But these will be relatively isolated interventions, rather than a sustained commitment to the Court’s responsibility in a moment of democratic peril.

In the end, the doorkeepers will keep the gate closed. And the man from the country will keep waiting. The relevant question, to me, is whether the man stays at the gate, futilely hoping for a reversal, or leaves and looks elsewhere for the law, where he can actually make change.