I have written several posts on California Federal District Judge Maame Ewusi-Mensah Frimpong’s temporary restraining order more or less preventing ICE from operating in California’s Central District — the district covering the seven counties of Los Angeles, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, and Ventura. The counties’ population of nearly 20 million people is the largest of any federal judicial district in the country. I wrote about Judge Frimpong’s crimping of ICE in posts that are accessible here. It’s crazy, baby. That’s my view.
Heather Mac Donald took up the case and the mysteries of Judge Frimpong herself in the City Journal column “Using a Double Standard on Race to Handicap ICE.” Subhead: “A federal judge ruled that agents impermissibly used race in questioning suspected illegal aliens—but she’s hardly color-blind in her own courtroom.” As one would expect from Ms. Mac Donald, it is an excellent column.
The government appealed Judge Frimpong’s order to the Ninth Circuit. The appeal remains pending, although the government has not received the emergency relief it sought from the court while the appeal is pending. The government therefore took its request for relief to the Supreme Court.
Mac Donald linked to what she called the government’s “emergency appeal” to the Supreme Court. The linked document is actually an application for a stay. The procedural background is addressed at pages 8-14.
As a temporary restraining order, Judge Frimpong’s order would not be appealable, but to my knowledge the parties have not argued the jurisdictional issue. In its Supreme Court stay application the government referred to the TRO as an injunction and invoked the jurisdiction of the Supreme Court under the All Writs Act, 28 U.S.C. § 1651.
In my view the Supreme Court needed to exert control over an out-of-control district judge. Judge Frimpong herself needs to be restrained. The government’s stay application makes that clear. That is the issue raised by the stay application.
In an unsigned order yesterday, the Court stayed Judge Frimpong’s temporary restraining order or whatever it is “pending the disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of a petition for a writ of certiorari [in the Supreme Court], if such a writ is timely sought.”
By a vote of 6-3, the Supreme Court order has stayed Judge Frimpong’s hand while the government’s appeal proceeds. The stay intimates the Court’s view of the merits of the case, but it is not a ruling on the merits. It is procedural and preliminary in nature.
In the linked Supreme Court order Justice Kavanaugh wrote a good concurring opinion fleshing out his view of the case. Justice Sotomayor dissented from the Court’s stay in a question-begging dissenting opinion joined by Justices Kagan and Jackson. The Court’s issuance of the stay suggests that it seeks to restore some kind of order to the havoc created by out-of-control federal district judges, but this is only one case among many and order has yet to be restored. See Josh Blackman’s lucid Civitas column “The failed lower court revolt.”
