Five justices still say the feds control border decisions. But only five.

The dissenting justices wanted us to know this was a 5-4 vote. Also: The justices finally announced that they will be hearing Richard Glossip's death-penalty case.

The U.S. Supreme Court, on a bare 5-4 majority vote, maintained federal supremacy in enforcement of immigration law on Monday.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh would have allowed an order from two Trump appointees on the U.S. Court of Appeals for the Fifth Circuit to stand that gave the State of Texas the ability to restrict federal access to the border.

Chief Justice John Roberts and Justice Amy Coney Barrett, however, joined the three Democratic appointees — Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — in vacating the injunction entered by the Fifth Circuit.

The case has garnered national attention, particularly after a woman and two children drowned in the Rio Grande and federal officials said they had been barred by Texas officials from accessing the relevant area. Texas officials denied that claim, but had acknowledged at the Supreme Court that the state “seized control of a municipal park in Eagle Pass for law-enforcement and disaster-relief purposes.”

The case began when Texas sued the federal government in late October 2023 on a “trespass to chattels” claim — essentially, interfering with Texas’s use of its property — for taking down or moving razor wire (concertina wire) that Texas officials are using along a 29-mile area of the border including Eagle Pass. U.S. District Judge Alia Moses, a George W. Bush appointee, initially granted Texas a temporary restraining order but ultimately denied a preliminary injunction because she found that the federal government did not give up its sovereign immunity protection from being sued in this situation. Texas appealed — and asked for an injunction pending appeal.

Fifth Circuit Judge Stuart Kyle Duncan, joined by Judge Don Willett, granted that injunction on Dec. 19. Judge Catharina Haynes, the third judge on the motions panel at the Fifth Circuit, would have deferred the question to the merits panel. Duncan and Willett are Trump appointees; Haynes is a George W. Bush appointee.

In Duncan’s opinion, the Fifth Circuit ordered:

Defendants [in the Department of Homeland Security] are ENJOINED during the pendency of this appeal from damaging, destroying, or otherwise interfering with Texas’s [concertina wire] fence in the vicinity of Eagle Pass, Texas, as indicated in Texas’s complaint.

The appeals court did so, Duncan wrote, because the defendants “do not enjoy sovereign immunity against Texas’s [claim]” and that Texas is likely to succeed in its “trespass to chattels” claim.

The result of the injunction was a situation in which federal officials would have to, in effect, follow state officials’ decisions in the Eagle Pass area regularly due to the limits placed on its actions under the injunction.

The Justice Department then asked the Supreme Court to vacate the injunction on Jan. 2. “This case concerns Texas’s attempts to invoke its state tort law to enjoin federally authorized activities of Border Patrol agents at the border along a 29-mile stretch of the Rio Grande,” DOJ lawyers wrote, arguing that the injunction “prohibits Border Patrol agents from cutting or moving Texas’s wire barriers that physically block agents from accessing the international border and reaching migrants who have already entered U.S. territory. That injunction is manifestly wrong.”

The quickly developing situation at the border led to eight back-and-forth filings over the past three weeks, with significant claims made by DOJ about Texas’s alleged interference in federal immigration operations and counterclaims that DOJ’s claims were overstated or being addressed.

The bottom line, though, was simple, as DOJ argued: “Texas cannot use state tort law to restrain federal Border Patrol agents carrying out their federal duties. The court of appeals’ contrary ruling inverts the Supremacy Clause by requiring federal law to yield to Texas law.”

In its response, Texas argued that “[t]he Supremacy Clause is not an unlimited license to destroy private property.”

It took the justices three weeks to rule on the request on Monday and vacate Duncan’s order for the Fifth Circuit. As noted, four justices would have let it stand.

We don’t know why, as no justice — on either side of the decision — gave any written reasoning for their decision. As a shadow docket matter, that is not a surprise.

It is technically possible that one or more of the four justices voted how they did on a non-substantive ground, viewing DOJ as not having met the standard for vacating an injunction. Given that the merits appeal at the Fifth Circuit has been expedited and is moving forward, with oral arguments already set for Feb. 7, it’s also possible that a justice or two decided that a ruling from the Supreme Court at this time was not justified.

But, if a justice had a non-substantive reason, they chose not to explain their reasoning. And that is a choice — particularly where all four justices who disagreed with Monday’s decision did choose to publicly note their vote opposing the decision.

In other words, the dissenting justices wanted us to know this was a 5-4 vote.

That will be an important fact to remember as this case proceeds to a ruling following the Fifth Circuit’s merits consideration of Texas’s appeal next month, at which point the case will almost certainly return to the Supreme Court.

---

Richard Glossip is back at SCOTUS

Earlier Monday, the Supreme Court also announced that it will hear Richard Glossip’s challenge to his conviction and death sentence.

The case, in which Glossip has maintained his innocence in the 1997 killing of Barry Van Treese, previously made its way to the justices on a challenge to the state’s proposed method of execution.

In the years since, however, many have raised questions about Glossip’s conviction and death sentence in the claimed murder-for-hire scheme, from his lawyers and the media to celebrities and state lawmakers. This past year, though, the case took a significant turn with the election of Attorney General Gentner Drummond.

A Republican who, generally, supports the death penalty, Drummond nonetheless has sided with Glossip, arguing that his conviction cannot stand based on evidence that had not previously been turned over to the defense. The Oklahoma courts, however, denied Glossip’s requests, and the case came back to the U.S. Supreme Court in 2023. In a highly unusual move, Drummond sided with Glossip to the justices — telling the U.S. Supreme Court that Glossip’s execution would be “unthinkable.” The court put his scheduled execution on hold in May while the justices decided whether they would hear the case.

The justices took their time with the multiple requests before them, only granting the case on Monday — meaning it almost certainly won’t be heard until next term, which begins in October 2024. That, in turn, means a decision in Glossip’s case could come as late as June 2025 — a full decade after the Supreme Court’s last decision in his case.

In announcing it had granted the case, the court stated that it would be considering these questions:

The justices also added a question about whether the state had provided an “adequate and independent state-law ground” for its decision. If it had, under Supreme Court precedent, the court would not have jurisdiction to hear the case.

I’ll have much more on the Glossip case here at Law Dork as it proceeds.