Outside the Beltway

A Typical Case of American Blind Justice

The judge wasn't going to look at the twenty seven eight-by-ten color glossy pictures.

James Joyner · Saturday, June 27, 2026 · 3 comments

I don’t read, much less quote, George Will’s columns much these days. His latest, “The Supreme Court errs in this immigration ruling,” though, could be a transcription of a conversation Steven Taylor and I had yesterday via text.

His thesis:

The pungent odor of Kristi Noem lingers in Washington. Nearly four months after she was fired as homeland security secretary, a facet of her tenure produced a Supreme Court case, decided on Thursday.

Her behavior egregiously violated the pertinent law, but was shielded from judicial rebuke by the court majority’s too-mechanical textualism about the secretary’s “determination,” meaning decision. And by a blinkered nonrecognition of the animus behind Noem’s action.

Indeed, in said conversation, Steven cited the ruling as the latest example of why we might need to rethink how we educate lawyers in this country. While abstract technical reasoning has its place, at some point judges need to be human beings who see through obvious bullshit.

The majority noted that the 1990 statute shields the DHS secretary’s “determination” from judicial review. And that the plaintiffs were unlikely to prevail regarding racism, because the Trump administration’s denial of TPS renewal was facially “race-neutral”: The administration has terminated every TPS designation that has come up for renewal.

Justice Elena Kagan, joined in dissent by Justices Sonia Sotomayor and Ketanji Brown Jackson, agrees that the TPS statute prevents judicial review of the DHS secretary’s final decision about TPS, but does allow judicial review of whether the secretary, in reaching that decision, “adhered to the procedures it mandates.” And Kagan noted that although previous DHS secretaries had “repeatedly” found Haiti and Syria “too dangerous to permit safe return,” Noem declared them safe without complying with specific statutory procedures that deny the DHS secretary “unfettered discretion.”

Kagan is obviously right here. It would be absurd, indeed, if the highest court were unable to require the executive to follow the basic tenets of the law. And, rather obviously, Noem did not.

In February, this column noted: The law required Noem to review conditions in Haiti after consulting with appropriate government agencies (note the plural). Instead, she made her decision, then conducted a make-believe “consultation.” A Noem staffer sent a two-sentence email to a State Department staffer who, 53 minutes later, sent a comparably brief judgment that Noem’s policy triggered no foreign policy concerns.

Kagan, however, noted the irrelevance of this: The law requires consultation not about foreign policy implications but about whether conditions are safe in the pertinent country.

Pretending that a cursory email exchange on a topic other than the one required by the law satisfied the law’s requirement is simply risible. There’s simply no way six members of the Supreme Court actually believed the claim.

And Kagan refuted the majority’s claim to see “no evidence that race played any role in the Haiti decision.”

Noem was implementing the president’s proclaimed animus even against immigrants who are in America legally, but whom he considers icky. Kagan says prior court rulings establish that the Haitians needed to show only that “a racially discriminatory purpose” was “a motivating factor” (emphasis added) in the termination of Haiti’s TPS designation. Well.

Noem’s former employer has said Haitians were eating Ohio pets (see below). He has said migrants such as they are “poisoning the blood” of America and Haitians “probably have AIDS.” Was race on the president’s mind? Donald Trump has clarified this: “Why is it we only take people from shithole countries” like Haiti and Somalia? “Why can’t we have some people from Norway [and] Sweden?” Kagan: “Haitians are Black. (Norwegians and Swedes not so much.)”

Three days after Noem terminated TPS for Haitians and Syrians, she recommended “a full travel ban on every damn country that’s been flooding our nation with killers, leeches, and entitlement junkies” who “slaughter our heroes” and “suck dry our hard-earned tax dollars.” She refrained from echoing Trump’s assertion about kitten-cooking Haitians in Springfield, Ohio. This marks her as a MAGA moderate. JD Vance spread the pet-eating fiction because he said creating “stories” (his word) makes the media notice Americans’ suffering.

Surely justices are not required to ignore such rhetoric? 

Alas, going back to the so-called “Muslim ban” early in the first Trump administration, they have done so.

And although thoughtful people disagree about whether, or how much, justices should consider the downstream consequences of their rulings, Kagan writes:

One of the Haitian plaintiffs, an Alzheimer’s researcher, has Type 1 diabetes, which can be easily treated in America but can be a “death sentence” in Haiti “given that country’s collapsed health-care infrastructure.” And a Syrian plaintiff will have to return with her 17-year-old daughter, who has lived here most of her life and “will have no future in Syria because she speaks little Arabic.”

I started studying Constitutional Law as an undergraduate four decades ago. I’ve only recently come to adopt the view that the courts, and certainly the Supreme Court, have to consider the policy implications of their rulings, not merely whether the question before them is technically legal.

Yes, the elected branches—Congress and the President—should make public policy and be granted wide latitude in doing so. In theory, if increasingly less in practice, the people can toss them out in the next election if they dislike the policy. But a justice system is supposed to ensure justice, not merely legality. Sending people who have done nothing wrong to die in countries they don’t know is not justice.