Who needs facts?

I’ll admit it. During these long, continental summer days, I’m finding American antics more…stimulating than usual.

The Environmental Protection Agency (lol) wants to rescind the “finding” that CO2 emissions from cars contribute to climate change and adverse human health impacts?

Temu Palpatine President Trump throws a tantrum over terrible, no good, self-inflicted jobs numbers and fires the commissioner of the Bureau of Labour Statistics?

Maybe it’s the distance offered by 9,000 km and spotty beach wifi. Or maybe it’s the luxurious heat (which, praise deregulation, I no longer bear any responsibility for). Either way, I feel liberated.

From across the pond(s), I see SCOTUS wielding the emergency docket and a reductive, ahistorical account of equity to undermine the rule of law (by reframing it as a private interest rather than a public good – Trump v. CASA, Barrett J.) and to foreclose structural reform litigation (by invoking “complete relief” to tighten the conceptual link between right and remedy – Trump v. CASA, Thomas J., concurring). 

Ordinarily, I might be disappointed, sour, even mad. Of course, there is still time for that. Some feelings take a while to reach the surface.

But on vacation? While watching punk shows on Alexanderplatz, crushing beers with Ukrainians on raw RyanAir flights, or swimming with my kids in the Libyan Sea? I’m bemused, even a little curious about where the conservative majority might follow their angry, orange muse.

Granting emergency stays of lower court injunctions in case after case about the federal bureaucracy (and immigration case after immigration case), the SCOTUS majority has allowed Executive assertions to trump reality. It has rarely bothered to offer an explanation. Instead, those six justices have relied on an apparent axiom: since the American Executive is defined by “bold and unhesitating action” (Trump, p. 13), it cannot abide any legal or factual constraint.

In the beginning, there was the bureaucracy

McMahon v. New York

• Despite the Executive’s constitutional obligation to “take Care that the Laws be faithfully executed”, the SCOTUS majority enabled the Government to fire half of the Department of Education and render it unable to perform its statutory functions.
• According to Sotomayor J., the District Court found the Government’s true intention was to effectively dismantle the DOE without Congressional authorization (10), and the First Circuit Court of Appeal found the Government did not even try to engage with those factual findings (11).
• The Government “submitted no evidence to rebut the factual record compiled by the plaintiffs” and relied entirely on unsupported assertions about seeking to “streamline” the DOE.

Trump v. American Federation of Government Employees

• A District Court issued a preliminary injunction against an Executive Order and Memorandum that mandated a “critical transformation” of the federal government (via “preparations to initiate large-scale reductions in force”) without statutory authorization
• Without making any factual findings of its own or providing any explanation at all, the majority overturned that injunction “Because the Government is likely to succeed on its argument that the Executive Order and Memorandum are lawful” (1).
• As Justice Jackson noted in dissent:
  • “What is at issue here is whether Executive Order No. 14210 effects a massive restructuring of the Federal Government (the likes of which have historically required Congressional approval)…or minor workforce reductions consistent with existing law…One needs facts to answer that critical question” (2, emphasis in original);
  • “from its lofty perch far from the facts or the evidence, this Court lacks the capacity to fully evaluate, much less responsibly override, reasoned lower court factfinding about what this challenged executive action actually entails” (2);
  • “the Court’s merit-focused approach to granting this stay is particularly problematic because the District Court’s decision to issue an injunction was based on findings of fact. It is not this Court’s role to swoop in and second-guess a lower court’s factual findings, especially when that court has made well reasoned, preliminary judgments on a developing record” (8).

• The evidence before the District Court included 68 sworn declarations from the Plaintiffs…and a single declaration from the Government (8)
• Despite that evidence and the District Court’s factual findings, the SCOTUS majority simply – and without explanation:
  • accepted the President’s assertion that this Executive Order and Memorandum are an exercise of existing authority rather than a more substantial reorganization of government; and
  • signalled its likely ruling on the merits if and when certiorari is granted.

Social Security Administration v. American Federation of State, County, and Municipal Employees

• The District Court preliminarily enjoined the Social Security Administration (SSA) from giving “DOGE affiliates” access to certain records, and the Fourth Circuit en banc denied the Government a stay of that preliminary injunction
• The SCOTUS majority accepted the Government’s claims and issued a stay – once again without explanation beyond reciting the four factors for a stay, including “irreparable harm”
• As Justice Jackson explained in dissent, the majority did not require the Government to substantiate its claim that it would suffer “irreparable harm”:
  • “With today’s decision, it seems the Court has truly lost its moorings. It interferes with the lower courts’ informed and equitable assessment of how the SSA’s data is best accessed during the courts of this litigation, and it does so without any showing by the Government that it will actually suffer concrete or irreparable harm from having to comply with the District Court’s order” (6);
  • Those six Justices did not care that “the Government never deigned to substantiate its purported need for unfettered access, much less demonstrate why it must have that degree of access now” or that “the Government still offers us next to nothing to satisfy its burden” (8-9).

For the SCOTUS majority, any alleged interference with the will of the President is sufficient to establish irreparable harm, to reject facts found by lower courts, to ignore evidence, and to overturned reasoned decisions. 

Immigration injunctions stayed with immediate and brutal impacts

Department of Homeland Security v. DVD

• The Government “unquestionably” (Sotomayor J., p. 12, quoting District Court) violated a District Court order requiring written notice to non-citizens before a third-country removal and a meaningful opportunity to raise a claim under the Convention Against Torture, then unsuccessfully sought stays of that injunction from the District Court and the First Circuit.
• The SCOTUS majority ignored the Government’s violations of the court order and granted the stay without reasons, despite the equitable doctrine of clean hands.
• As noted by Sotomayor J. in dissent, the majority allowed to stand:
  •  “the facially absurd contention that the Executive is “irreparabl[y]” harmed any time a court orders it temporarily to refrain from doing something it would like to do (11);
  • the Government’s absurd view “that the only way to challenge its refusal to provide orders of removal is to appeal those (nonexistent) orders” (13); and
  • the use of wartime precedent to support the Government’s assertion that “the Executive’s determination that ‘a country will not torture a person on his removal’ is ‘conclusive’” (18).

Noem v. Doe

• A District Court temporarily stayed a universal notice from the Department of Homeland Security (DHS) which purported to terminate the lawful status of approximately 500,000 “parolees” from Cuba, Haiti, Nicaragua, and Venezuela. The First Circuit “declined to disturb that decision pending appeal.” But the SCOTUS majority granted a stay sans reasons.
• Once again, as Jackson J. observed in dissent, the majority “requires next to nothing with respect to irreparable harm” (2) and accepts the DHS assertion that the District Court’s order “prevents it from exercising its prerogatives with respect to immigration and foreign policy, as a general matter” (5).
  • With nothing beyond the Government’s “bald contention” that it “is irreparably harmed whenever its ‘substantial interest in carrying out the President’s policies’ is burdened” (7), the majority ignored the “devastating consequences” to nearly half a million noncitizens while their legal claims are pending.

Trump v. J.G.G.

• The President issued a Proclamation that invoked the Alien Enemies Act to detain and remove Venezuelan nationals “who are members of” Tren de Aragua (TdA): a gang the State Department has designated as a foreign terrorist organization. A District Court issued temporary restraining orders preventing removal of five plaintiffs and any members of a provisionally certified class. The DC Circuit denied the Government a stay. The SCOTUS majority granted the stay and held that the proper venue for AEA detainees to seek habeas relief is in the district of their confinement (Majority, 2-4).
  • Of course, a key issue in any such application for habeas relief would be whether the detainee is in fact a member of TdA: the very grounds for removal under the Proclamation.
  • And, of course, the Government moved the named plaintiffs and dozens of other detainees onto a plane for deportation without any opportunity to contact their lawyers, let alone any notice or opportunity to be heard on this or any other issue (Sotomayor J., 3).
  • Which, of course, would frustrate any effort to seek habeas relief in any district.
• Once again, as Sotomayor J. showed in dissent, the majority granted extraordinary equitable relief to the Government despite unclean hands (16-17)
  • The majority’s short reasons confirmed deportees were entitled to some due process, but the Government sought to avoid judicial review by “hustl[ing] people onto those planes” and then “persistently stonewalled the District Court’s efforts to find out whether the Government in fact flouted its express order” (17).
• Not only did the majority act with only a “bare-bones briefing, no argument, and scarce time for reflect” (Sotomayor J., 1), the Government’s conduct was intended to frustrate efforts to find facts. 

Trump v. CASA

• The majority used its emergency docket to conclude that District Courts lack the authority to issue universal injunctions which apply beyond the particular case to the entire federal Government because such remedies are not sufficiently analogous to the remedies “traditionally accorded by courts of equity” when Congress adopted the Judiciary Act, 1789 (6, 11).
• The axiom of Executive power takes center stage:
  • A universal injunction “improperly intrudes” on the Executive and “That is enough to justify interim relief” (24);
  • “Any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury” (25); and
  • “federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them” (26).
• Thomas and Alito JJ. took this opportunity to strike a blow against structural reform litigation (and public law litigation and their descendants) by insisting that, in light of the “complete relief principle”, “In no circumstances can a court award relief beyond that necessary to redress the plaintiffs’ injuries” (2).
  • They are trying to hardwire a tight connection between right and remedy into “both Article III and traditional equitable practice” (Thomas J., 2), which would pre-empt efforts to pursue meaningful institutional change via courts, would drastically raise the costs of accessing justice, and would deeply entrench majoritarian politics. 
  • Sotomayor J. knows the trick they are trying to pull, which is why she invoked Brown v. Board of Education (Sotomayor J., 36).
  • There is nothing “conservative” about their scorched-earth tactics.
• Both Sotomayor J. and Jackson J. resist the radical and reactionary majority. They know the rule of law is fundamentally incompatible with the majority’s conception of Executive power.
  • “The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law” (Jackson J., 1).
  • “No right is safe in the new legal regime the Court creates” (Sotomayor J., 3).
• Sotomayor J. still manages to identify ironies both
  • immediate (“The injunctions do no more harm to the Executive than the Constitution and federal law do” (Sotomayor J., 17))
  • and more profound (“the majority fundamentally misunderstands the nature of equity by freezing in amber the precise remedies available at the time of the Judiciary Act. Even as it declares that “[e]quity is flexible,”…the majority ignores the very flexibility that historically allowed equity to secure complete justice where the rigid forms of common law proved inadequate” (Sotomayor J., 29)).

Over and over again, in shadow realm of the emergency docket, the American Executive has revealed its deep hostility to reality and the SCOTUS majority has been happy to follow orders and set course for a fact-free future.

Meanwhile, back at home

The SCC hasn’t yet taken much of a summer break, and its recent judgments reveal our own unresolved issues with the relationship between facts and law. Unsurprisingly, these issues are expressed in our own adorable idioms, such as proportionality and the standard of review:

• Pepa v. Canada (Citizenship and Immigration), 2025 SCC 21: the SCC majority repeatedly invoked Vavilov, but its “robust” (¶131) scrutiny of the factual findings in this immigration case raised questions about the viability and reliability of reasonableness review (Rowe J., dissenting, ¶¶142-148; Côté and O’Bonsawin JJ., ¶217).
• R. v. I.M., 2025 SCC 23, and R. v. S.B., 2025 SCC 24: in these somewhat-controversial judgments about youth sentencing, the SCC majority conjured an entirely novel factual determination (“developmental age”, as distinct from “chronological age”) from the text of the Youth Criminal Justice Act and made that previously unknown (and entirely unmentioned) factual finding essential to the operation of the Act (I.M. at ¶¶6, 105-107 (majority) and ¶¶239-241 (dissent); S.B. at ¶31). 
• R. v. Kloubakov, 2025 SCC 25: the unanimous Court found that a Charter challenge to legislation must proceed on a correct interpretation of the impugned law (¶149) and clarified that an incorrect interpretation can lead a lower court to make the wrong factual inquiries and findings, which are not entitled to appellate deference (¶152).

As usual, the SCC has faced much more mundane issues than has SCOTUS. And, also as usual, the SCC has done so in a far more subtle and self-effacing manner. 

We’re heading home now, winding our way from Berlin to Frankfurt, where we will faithfully catch an Air Canada flight back to Vancouver. The windfarms, cathedrals, and solar panels rolling by our express train confirm just how far we still have to go. Nonetheless, as our departure grows close, I’m feeling more reflective and I’m thankful to be returning to a country where our apex court still knows its role (and its worth), still upholds the rule of law rather than worshipping the will to power, and still understands the humility required from judges who “sit as the ultimate guardians of the Constitution” (R. v. Bouvette, 2025 SCC 18, ¶160).

Deutsche Bahn ICE 931, about an hour east of Frankfurt