John Roberts doesn't know what time it is

Dear readers: it’s been a while. Between my various personal and professional responsibilities, including the weekly Discourse Machine podcast, sitting down to write for this blog has fallen through the cracks. But out of everything that’s been going wrong in the past few months, there’s one thing that stands out as both an extreme peril to our Constitution and an act of unimaginable, callous evil. So if I’m going to write anything, it has to be this. And I’m going to be a little bit more raw than I normally am in my public writing, because if anything merits it, it’s this.

I’m referring to the way that the Trump administration has sought to use the Alien Enemies Act of 1798 to allow it to arrest, detain, and deport Venezuelans who the administration claims (without evidence) are gang members, but are in many cases likely to be guilty only of the horrible crime of checks notes having tattoos. These human beings have been denied all due process, in violation of the law of the land and of the basic principles of human decency. They have been shipped to El Salvador, where our government is paying that nation’s authoritarian ruler to keep them in prisons that human rights organizations say feature “torture, ill-treatment, incommunicado detention, severe violations of due process and inhumane conditions, such as lack of access to adequate healthcare and food.” These prisoners include a gay makeup artist who fled Venezuela because of persecution, a soccer player with a tattoo based on his favorite club, and a psychology student with a rainbow autism awareness tattoo to honor his younger brother. The majority of them have no criminal record, and the administration has made precisely zero effort to prove that they are gang members. But we can send them away to be beaten, starved, and possibly killed, because that’s who we are now, as a country.

I don’t really have words that are adequate to describe how I feel about the warped moral monstrosities in this administration who are willing to send human beings to be tortured in foreign gulags. We’ve all read about things like this, of course, but it was people like Hitler and Stalin and Pol Pot doing it, not, you know, the president of the country we live in. I hate these ghouls more than I ever thought it would be possible to hate another living, breathing person (and not just one of history’s great villains). I could sit here and write whatever-this-site’s-word-count-is worth of the worst obscenities I could invent and it wouldn’t be half what these soulless bastards deserve, so I’ll spare you the effort. (If you want the catharsis anyway, watch this video from Tim Miller, because the folks at the Bulwark are some of the only ones with a public platform talking about this in the way it deserves to be.)

But since I have a bottomless well of anger about this, I’m going to talk instead about John Roberts and the Supreme Court. On April 7, SCOTUS released a per curiam ruling in Trump v. J.G.G. I’m not a lawyer, so I won’t do legal analysis. The upshot of the ruling is this: the deportees are entitled to due process, but whoopsies, this lawsuit was filed under the Administrative Procedure Act when it really should’ve been a habeas corpus petition, so go back and try again.

In an extremely narrow sense, this isn’t as bad as it could have been. SCOTUS didn’t say that the administration can just disappear whoever it wants to, with no judicial review. Like I said, I’m not a lawyer, and at least some of the legal analyses I’ve read suggests that this was at least plausibly a ‘correct’ technical decision about the right procedure. But I am a philosopher, so while I don’t view myself as entitled to pontificate on what the law is or isn’t, I damn well am entitled to say what is or isn’t immoral and stupid. This is immoral; it’s also stupid.

Here’s the thing with the Alien Enemies Act. It says the following:

The Trump administration is claiming that membership in the Venezuelan gang Tren de Aragua is enough to give them deportation authority under this act. Now, since I know how to read and I’m not a complete idiot, I can make the obvious objections that a gang isn’t a government, that the words “natives, citizens, denizens, or subjects of the hostile nation or government” can’t possibly mean “gang members,” and that you can’t possibly describe gang activity as an invasion or “predatory incursion…against the territory of the United States.” (All of that is of course assuming that every single person deported to El Salvador is actually a dangerous member of Tren de Aragua—if that’s true I’ll find the biggest hat in Texas and eat it on live television) This is the intellectual equivalent of the government showing up in court and saying “2+2=5, and because 2+2=5, we can send people to be tortured in foreign gulags,” and the Supreme Court saying “well, see, we have to let you keep those people there for now because they filed the wrong paperwork.”

Conditional on “words meaning things,” the government loses this case. Actual Nazis, as one judge pointed out, got better treatment under the Alien Enemies Act. The Nazis in question, of course, were part of an actual government in an actual declared war with the United States. So there’s two possibilities here. Maybe John Roberts and friends have decided that words don’t actually mean things anymore and they think the government can plausibly win this case. I don’t really think that’s true—if it is, I have an entirely different set of aspersions to cast on them. The more likely thing is that they know that the government is in the wrong and have decided that, all things considered, it’s better to let human beings rot in a Salvadoran dictator’s torture dungeon until their lawyers do the paperwork right.

Here’s what John Roberts would say, if he had a spine and a conscience: “We’re the Supreme Court of the United-&*#$ing-States. 2+2 does not, in fact, equal 5; you the government cannot send people to be tortured in a foreign gulag; and there isn’t any possible way for you to get from 2+2 to 5 plus getting to torture people. So we don’t need to wait for the right sort of petition, because anybody with two brain cells to rub together to make fire knows that you don’t have any authority to do any of that. Terminate your evil bargain with Bukele and get them back immediately.”

That’s what justice would be. That’s what basic rationality would be.

But from everything I can see, John Roberts doesn’t know what time it is. In the fantasy world of the court’s majority (minus Amy Coney Barrett, in her moments of lucidity), things can go along more-or-less as normal. Just another day in these United States.

In the real world, the current government of the United States has declared war on the Constitution of the United States. It has declared war on the core values of the United States and the imperfectly-applied-yet-still-powerful call of the Declaration of Independence for life, liberty, and the pursuit of happiness for all. And in sending almost-certainly-innocent people to rot in a prison camp without due process, they have declared war on basic human decency and morality.

Nothing about this is normal. This isn’t the time to debate procedure, it’s the time to bring everything you have to bear on the great moral endeavor of our generation. I love my country—what it aspires to be and what it sometimes, though not always, actually is—and because of that, I’m not willing to stand by and watch it become the kind of cruel, repressive, lawless regime people like Stephen Miller want it to be. I don’t know that I can say that about the Chief Justice.

To paraphrase, “Why John, it profits a man nothing to give his soul for the whole world…But for the Chief Justiceship?”