I noted in my recent Civitas column that it is rare for a single judge to be reversed by the Supreme Court twice in the same case. Yet, it has happened again. The latest installment is Noem v. TPA Alliance, Part II. The Court states the issue plainly:
In March of this year, the United States District Courtfor the Northern District of California entered a preliminary order postponing the effective date of the Secretary of Homeland Security's decision to remove "temporary protected status" (TPS) from Venezuelan nationals living in the United States. See 8 U. S. C. §1254a; 5 U. S. C. §705. In May, this Court stayed that order while the Governmentappealed. The United States Court of Appeals for the Ninth Circuit ultimately affirmed the District Court's preliminary order. Last month, the District Court entered final judgment in respondents' favor, holding unlawful and settingaside the Secretary's actions effectuating her decision—namely, her vacatur of a pending extension of TPS for Venezuelan nationals, and her termination of that status itself. See 5 U. S. C. §706(2). (The District Court also concluded that the Secretary unlawfully vacated a TPS extension for Haitian nationals. The Government now seeks to stay theportions of the District Court's judgment pertaining to Venezuela, but not Haiti. See Application 7, n. 6.) The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. Although the posture of the case has changed, the parties' legal arguments and relative harms generally have not. The same result that we reached in May is appropriate here.
Justice Jackson, in dissent, laments how the Court did not use its "opinion-writing capacity." Given that this case took less than ten days to resolve, from start to finish, I don't think the Court found the matter particularly difficult. Justices Kagan and Sotomayor did not join Jackson's dissent.
At some point, lower courts will get the memo of how the emergency docket works.
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