Is the Supreme Court’s silence failing to turn “square corners” in immigration cases?

In a 1920 Supreme Court decision, Justice Oliver Wendell Holmes wrote that “men must turn square corners when they deal with the Government.” In a 2020 Supreme Court decision, Chief Justice John Roberts wrote, “But it is also true, particularly when so much is at stake, that ‘the Government should turn square corners in dealing with the people.’"

The government’s failure to do so in the context of immigration enforcement and the Supreme Court’s silence— complicity? — in the face of it is what has bitterly divided the Justices in the closing weeks of their term.

Roberts’ comments five years ago ironically came in a decision involving immigration and the Department of Homeland Security. The Justices took briefs and heard arguments on the department’s decision to terminate DACA, a program giving temporary relief from removal to “Dreamers”– children brought to the United States by their illegal immigrant parents. 

In that case, a 5-4 majority, led by Roberts, ruled that the department’s decision to rescind DACA was arbitrary and capricious in violation of the federal Administrative Procedure Act, which sets out the rules of the road for federal agency actions.

There was no briefing or oral argument behind the Justices’ ruling on Monday in Department of Homeland Security v. D.V.D.  The case came to the court as an emergency application by the Trump Administration which was seeking a temporary stay —or block —of a district judge’s order stopping the government from removing a group of undocumented immigrants to “third countries” that the immigrant has no connection with, and that are willing to accept the alien.

Third-country removals generally are the last option, coming after removals to the immigrant’s birth country or last residence can’t be accomplished for some reason. The United States belongs to an international convention, which has been implemented by federal law, preventing removals to any country in which a person has substantial grounds for believing he or she may be tortured. Anyone can raise a claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

In March 2025, a federal trial judge in Massachusetts issued a temporary order prohibiting the Homeland Security Department from removing to third countries three individuals and a class of all individuals subject to a final order of removal, without written notice of the third country and a meaningful opportunity to make a claim for relief under the Convention. The D.V.D. plaintiffs alleged that the government’s policy of removing noncitizens to a third country without notice or the opportunity to file a claim under the Convention violated the immigration laws, the regulations implementing the Convention, and the Fifth Amendment’s Due Process Clause. 

The judge’s order is, in a sense, the embodiment of countless criticisms by trial judges of both political parties about the Trump Administration’s handling of immigration removal cases. These judges have at times accused government lawyers of misleading them, failing to provide important information, and flouting or violating their orders, and they have threatened to hold some lawyers and department officials in contempt of court.

In the D.V.D. case, the district court judge in May found that the Homeland Security department had “unquestionably” violated its subsequent preliminary injunction when it sent six detained immigrants to South Sudan, a country involved in a brutal civil war, and sent them with less than 24 hours’ notice.

In what was either a 6-3 or 5-3 unsigned decision, the Supreme Court’s conservative majority granted the government’s request to block the trial judge’s orders and allowed third-country removals to go forward.

In a blistering dissent, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, outlined the government’s “flagrantly unlawful conduct” in the case and how the Supreme Court majority failed to follow its own rules for granting emergency relief.

“Here, in violation of an unambiguous [Temporary Restraining Order], the Government flew four noncitizens to Guantanamo Bay, and from there deported them to El Salvador,” Sotomayor wrote. “Then, in violation of the very preliminary injunction from which it now seeks relief, the Government removed six class members to South Sudan with less than 16 hours’ notice and no opportunity to be heard. The affected class members lacked any opportunity to research South Sudan, to determine whether they would face risks of torture or death there, or to speak to anyone about their concerns. Instead, they were left in their cells overnight with no chance to raise a claim and deported the next morning.”

Sotomayor added: “The Government thus openly flouted two court orders, including the one from which it now seeks relief. Even if the orders in question had been mistaken, the Government had a duty to obey them until they were ‘reversed by orderly and proper proceedings.’  That principle is a bedrock of the rule of law. The Government’s misconduct threatens it to its core. So too does this Court’s decision to grant the Government equitable relief.”

Sotomayor goes on to show why, in her view, the government failed to meet its burden for relief under the required factors: likelihood of success on the merits, likelihood of irreparable harm if relief not granted, and a balancing of each side’s equities.

The majority’s response to the dissenters’ lengthy arguments about the government’s lack of “clean hands” in the case and its weak arguments for relief was silence. The unsigned order simply repeated standard boilerplate: the trial judge’s order is stayed pending the disposition of an appeal to the U.S. Court of Appeals for the First Circuit and a petition for Supreme Court review, if sought.

This case, as Sotomayor noted in her dissent, is not the first time the majority has ignored any mention of the government’s deceptive actions around removals when granting the government what it seeks and its corrosive effect on the rule of law. But the majority’s silence leaves the average person with a one-sided view of what transpired in this case, the dissenters’ view, and trial judges twisting in the wind.

Perhaps more importantly, the silence also leaves very little confidence that the court is monitoring or caring about whether the government is turning “square corners” in dealing with the people, and little confidence that it sees itself, as part of “the government”  also responsible, “particularly when so much is at stake” for turning those “square corners.”

Marcia Coyle is a regular contributor to Constitution Daily. She was the Supreme Court Correspondent for The National Law Journal and PBS NewsHour who has covered the Supreme Court for more than three decades.