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A Difference that Makes No Difference is No Difference -- Supreme Court Ends Important Part of Const [1]

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Date: 2025-04-09

On Monday, the Supreme Court ruled, 5-4 (all the men on one side, all the woman on the other) that a temporary restraining order preventing deportations under the Alien Enemies Act to the torture dungeon in El Salvador should be lifted. The Court effectively ended Habeas Corpus relief for immigration, ripping out a critical aspect of the Constitution.

Habeas Corpus is the rule by which you must be granted judicial due process. The judge in the original ruling determined that the people sent to the torture prison, including at least one who the administration admits should not have been sent, had been granted no due process and that since the Administration lied or tried to hide information and people from the Court, that no more such deportations take place until the issues had been settled. The Supreme Court ended that temporary restraining order and in doing so, destroyed Habeas Corpus, at least for immigration issues.

I have seen some people say that this is a good ruling, or at least not a terrible one. That opinion seems to rest upon the idea that the Court did rule that all people facing deportation cannot be deported until they have been notified of their right to a hearing and, if they choose to exercise that right, they cannot be removed until said hearing. But that is a meaningless order in light of the rest of the decision.

The Court said that the hearings must take place in the place of detention and specifically mentioned that the detainees were in Texas. This clearly means that the point of detention is wherever the government says it is, as long as it can keep your disappearance under wraps long enough to get you to Texas. Stolen off the streets in Boston? Tough — since the government didn’t tell your lawyer where you were until they got you to a favorable court in Texas, Texas is where you shall have your hearing. If you get one.

The Court did not give details on what constitutes notice, nor what constitutes sufficient time. It has effectively left those details in the hands of the government. Given that the government has consistently acted in bad faith throughout these proceedings, something the dissenters make abundantly clear, the Court has effectively left the implementation details to people who clearly nave no intent on honoring the law. Any notice will be specious at best, effectively nonexistent at worst.

Here is what is most likely to happen. The government will steal people off the streets and not let anyone know where they are until they have placed in a detention that is ruled over by a compliant judge. Any notification of rights will likely be in the fine print of another document, likely only in English, and signing the document that the notification is attached to will be said to be a waiver of the right to a hearing. Almost no one will get a hearing, almost no one who does will have representation (since that is not currently required in immigration proceedings and the Court may no provision here to provide said representation), and almost no one who has a hearing will be found to have had their rights violated since the government was allowed to pick the court in front of which the hearing takes place. The right will cease to exist practically even if it shambles along as a zombie reminder of when we were actually a nation of laws.

An electrical engineering professor of mine always used to say that a difference that makes no difference is no difference. That is what the Court has done today — it has given us a ruling that makes no practical difference to the people whose rights are being taken away. With respect to simply ending habeas corpus, it is no difference. And we need to act like it is no difference. We cannot simply say that because five people on the Supreme Court have effectively written habeas corpus out of the Constitution that this is now Constitutional.

It is not.

The Court is not the only arbiter of what is and is not Constitutional. The Constitution is not a magic spell or holy text interpretable by only the High Priests of the Supreme Court. When the Court acts badly and outside the clear meaning of the Constitution, then we are required to say so. We are required to point out that what the Court is doing is ruling outside the bounds of the Constitution and that such bad behavior needs to end. It must be resisted, or there is no way to ever get our freedoms back.

This is not a call to defy the rulings of this Court. We still operate in a place of law, and it is important to maintain that situation. But the ruling should be vocally opposed, and the people who made it vocally condemned. At a minimum, rebalancing the Court so that the people who wish to rule outside the Constitution no longer control the Court is the bare minimum required to be a viable Democratic (and Republican if I had any faith in Republican voters) politician. No one from the Federalist Society, the organization dedicated to putting unconstitutional hacks on the bench, should ever be accepted in legal or judicial circles ever again. If they wish to be serfs, let them go to Russia or Hungary. Within the bounds of the law, people should slow walk the implementation of the ruling. And we should be loudly proclaiming that the ruling is outside the bounds of the Constitution, which it clearly is.

I want to hear no nonsense about maintaining respect for the Courts or the rule of law. Right wingers spent decades moaning falsely about activist judges with no harm to the Court. If the Court wishes to rule outside the Constitution, the blame for whatever damage done is on them, not on the people pointing out that they are ruling outside the bounds of the Constitution. Pretending that something bad has not happened when, in fact, something bad has happened is not a recipe for fixing the bad thing. It is a recipe for the bad thing continuing.

We must stop pretending that the Court is the infallible arbiter of what is and is not Constitutional. This Court, a Court that immunized a President from prosecution, is not a Court that can be trusted with that power. And we must stop pretending that keeping something on paper is the same as keeping that thing in reality. A difference that makes no difference is no difference. We must not be afraid to point these truths out. It is the only way we can build support for undoing the damage done.

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[1] Url: https://www.dailykos.com/stories/2025/4/9/2315307/-A-Difference-that-Makes-No-Difference-is-No-Difference-Supreme-Court-Ends-Important-Part-of-Const?pm_campaign=front_page&pm_source=trending&pm_medium=web

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