The Supreme Court Allows Third-Country Deportations to Continue

Strict Scrutiny

The hosts open with a scathing critique of the Supreme Court's recent shadow docket rulings, highlighting the court's decision to lift stays on a botched Tennessee execution and resume controversial third-country deportations. The episode then shifts to Jack

Key takeaways

• The Supreme Court lifted a stay on Tennessee's execution of Krista Pike, resulting in a widely condemned botched lethal injection that left her alive but critically injured.
• Justice Samuel Alito recused himself from Suncor Energy v. Boulder County after months of public pressure over his ownership of oil company stocks.

Main topics

• Supreme Court shadow docket and execution stays
• Third-country deportations and due process violations

Notable quotes

The Supreme Court of these United States said, sure, go ahead, resume third country deportations in the absence of basic due process protections.

Conclusion

Listeners gain a comprehensive breakdown of the Court's most controversial early-term actions, understand the

Transcript preview

Speaker 6 (0:00) Strict scrutiny is brought to you by Americans United for separation of church and state. It's fall, y'all, which means it's back to school season. And this year, because of the courts, 5 million children across Texas have fallen back to the days of religious proselytization in schools. Yes, 5 million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court. And we need you to amplify their voices before the Supreme Court gets its hands on this case. We've seen how public pressure works, and the public needs to be clued in about this case. You can hear one of the plaintiffs here. Speaker 1 (0:44) They're going to go up, but... We're going to fight to get him taken down. Speaker 6 (0:48) That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian. And their kids are in Texas public schools. The story they tell in this video is moving, and we hope everyone hears and shares it. There is a human cost of Christian nationalist policies, like these Ten Commandments laws and the decisions the Supreme Court hands down. Visit au.org slash 10C to learn more about this case and how you can help join the fight to protect church-state separation. Speaker 8 (1:18) Chief Justice Speaker 8 (1:22) No joke, when a man argues against two beautiful ladies like this, they're going to have the last word. Speaker 3 (1:30) She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Speaker 6 (2:00) Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts, and once again, we are here in full force. I'm Speaker 7 (2:10) Leah Littman. I'm Speaker 5 (2:11) Kate Shaw. And Speaker 7 (2:11) I'm Melissa Murray. And guess what, folks? We have a banger of a show for you because our favorite justices... Okay, let me take that again. Our justices are back on the bench. They're not my justices, Melissa. Nope, exactly. I'd redo that once more. Speaker 6 (2:27) Take Speaker 7 (2:28) three. Those justices. Take three. So those justices are back on their hustle, which is to say that they are back on the bench hearing cases because this episode drops on the first Monday of October. October. So this is going to be a full episode. We're going to do argument previews. We're going to get you up to speed on everything that the court is doing, but we will also bring you breaking news. And of course, we're going to have a fantastic interview. And then we will end with a rundown of our favorite things. So shall we start with the breaking news? Let's do it. All right. So, folks, in the week leading up to the beginning of another Supreme Court term, the Republican appointees on this court decided to remind us of exactly who they are. So do you all remember all of the goodwill the court amassed? Not with us, obviously, but with other people. They amassed all of this goodwill last year by doing the absolute bare minimum to prevent Donald Trump from taking over federal elections using the post office, at least for now, per Brett Kavanaugh. Or do you remember at the end of last term when they amassed some goodwill by ruling narrowly against the president and affirming that maybe the Constitution means what it says about birthright citizenship, TBD? And then they also amassed some goodwill by preventing the president from wrecking the economy in the Tariff and Lisa Cook Fed cases? Well... All of that happened. All of that goodwill was amassed. Lots of people were lauding this court for doing the absolute least. And then this conservative supermajority decided to do something insane with all of that goodwill. They decided that they were going to, wait for it, facilitate torture, really and truly. Speaker 6 (4:14) Yes. So for your consideration, there was... Last Wednesday night, absolutely horrifying botched execution of Krista Pike. Pike was sentenced to death in Tennessee for participating in the murder of a classmate in 1995. She had recently filed a motion to reopen the denial of her habeas petition, arguing that the state had changed its position on the relevance of some mitigation evidence she had presented. Early on Wednesday, the Sixth Circuit granted a temporary stay of execution. Pike had wanted to introduce evidence of the extensive physical and sexual abuse she suffered as a child. child, which the state now doesn't really dispute happened, and the Sixth Circuit agreed to a brief stay to allow her to potentially air that claim. The state of Tennessee ran to the Supreme Court to ask it to lift the stay, and the court, in a six to three, totally unexplained decision, lifted the stay, allowed Tennessee to expedite the execution and proceed, a decision that Justice Sotomayor, joined by Justices Kagan and Jackson, called, quote, stunning. Speaker 5 (5:12) Okay, so what happened next after the Supreme Court's green light? Tennessee attempted to proceed with the execution using pentobarbital, which it had adopted as its lethal injection drug of choice after an investigation into its previous three-drug lethal injection protocol revealed absolutely horrifying procedural and testing failures. So the state adopted this new single-drug protocol in 2025. In May 2026, so just a few months ago, there was a failed execution because Tennessee officials could not locate an IV line, which seems like a pretty basic thing for a state trying to do lethal injection executions, but they failed to do it. Speaker 6 (5:48) And so they said, let us hurry up and do another one, right? That's the nature of their request. Speaker 7 (5:53) That's basically it. Like, there are real questions about the three-drug protocol. They replaced it with this one-drug protocol. There are still questions about the one-drug protocol. And then this request comes in and the court's like, Nothing to see here. Let's continue full speed ahead. So on Wednesday, Tennessee's planned execution of Krista Pike failed spectacularly in what appears to be yet another botched administration of the single drug protocol. According to witnesses, Pike was clearly in pain when the drug was being administered, and after two syringes of pentobarbital were injected, she remained awake and breathing. She was then transported to a hospital, and at the time of this recording on Friday afternoon, all we know about her condition is that she is reportedly alive, but they have listed her as being in critical condition. According to Robin Mayer, who runs the Death Penalty Information Center, quote, this event is the worst we've seen, and unlike any other botched execution in the modern era, there is no precedent. Imagine Speaker 6 (6:54) if you are a hospital worker. And into the ER comes someone the state tried and failed to execute. It's just like that is what is happening. And in their dissent, the Democratic appointees had warned about the, quote, grave consequences of an erroneous decision to allow the state to expedite the execution. And this is not the first time the Supreme Court has been warned about the potential for an execution to go wrong. only for the execution to then go horribly wrong. This happened in Kenny Smith's case, where Alabama, after failing to execute Smith by lethal injection, wanted to execute him by gassing him with nitrogen and use him as a guinea pig for their new protocol. The state said, promised he'd lose consciousness immediately and die shortly thereafter. The Supreme Court declined to block the execution. And what happened? It took more than 30 minutes after the execution started for Mr. Smith to be declared dead, during which time he was thrashing, violently jerking and heaving and retching. And Speaker 5 (7:51) that's not even the only other such example. So remember the execution that begins Judge David Tatel's book, Vision, which we... discussed on the podcast when we had Judge Tatel on. It begins with the story of Indiana prisoner Daniel Lewis Lee, who the federal government was rushing to execute, actually also using pentobarbital. And there had been a stay entered by the D.C. Circuit and yet another unreasoned, at this point five to four rather than six to three, but unreasoned Supreme Court order lifted the stay of execution and allowed this execution to go forward. It was like... Tatel, both in the book and I remember in the conversation, was still just like so stunned at what the Supreme Court had done. And it was horrifying and scandalous six years ago when this happened. And we just cannot allow ourselves to get desensitized to it. And that is not, as Melissa alluded to up top. All of the horror the court unleashed just last week on the shadow docket slash torture docket. Because last week, for the third time, the court stepped in to permit the administration to resume its so-called third country removals. This, recall, is the practice of sending individuals with orders of deportation to countries with which they have no relationship or they may be and have been subject to inhumane treatment, including torture. Speaker 7 (9:05) This case has been bouncing around between a Massachusetts district court, the First Circuit, and the Supreme Court for well over a year. In this most recent round of litigation, the district court again found that the plaintiffs, most of whom are from countries in Central or South America, but who have been scheduled to be rendered to countries far from South and Central America, they've been scheduled to go to places like South Sudan. and Eswatini. The district court held that they were entitled to hearings due process in which they could make claims that they feared persecution or torture in these third countries. The Massachusetts District Court described the case in the following way, quote, This case is about whether the government may, without notice, deport a person to the wrong country or a country where he's likely to be persecuted or tortured, thereby depriving that person of the opportunity to seek protections to which he would be indisputably entitled. DHS has adopted a policy whereby it may take people and drop them off in parts unknown. And as long as the department doesn't already know that there's someone standing there waiting to shoot, that's fine. It's not fine, nor is it legal, end quote. Speaker 6 (10:12) The fact that a lower court thinks this is neither fine nor legal should tell you how the Supreme Court ruled here. The folks who go to work in a building that has the phrase equal justice under law inscribed on its pediment decided to stay the lower court's order, allowing the administration to resume third country deportations. And the fears these plaintiffs raise are not speculative. The New York Times has reported beatings and denials of medical care while in transit and abuse upon arrival in Equatorial Guinea. Sarah Stillman at The New Yorker has reported deprivation of food and isolation in the forests of Ghana and prisons of Eswatini. There are also credible allegations that people sent to Liberia, where the administration has negotiated an agreement to send more than 1,000 people, are at risk of being sold into slavery and trafficked. Speaker 5 (10:57) So again, to make it all appallingly clear, the Supreme Court of these United States said, sure, go ahead, resume third country deportations in the absence of basic due process protections. And they did this in the face of extensive reporting about what this policy actually involves. Speaker 6 (11:12) And let's link these two shadow docket orders. Here, the court is saying, go ahead, administration, go ahead and implement a policy that allegedly results in torture while we, Supreme Court, deign to figure out whether it does in fact illegally enable torture. And in Krista Pike's case, it was go ahead and execute this person or try to on an expedited basis, which we know carries a risk of torture before a court even looks into the legality of her sentence. Just absolutely goblin ghoulish. Speaker 7 (11:38) There is one tiny glimmer of a silver lining here, perhaps even a nod to public pressure on the part of the court, and maybe even the possibility that law may still matter, because this court decided to grant certiorari on the DVD case. That's the third-party removal case. And they will hear this appeal on the merits docket on an expedited basis. Now, I just want to say I'm not turning into Kate. I don't think we should go slapping them on the back for deciding to put this case on the semi-fast track for decision because They did some other stuff with this grant of certiorari. So they added a really weird question to the order granting certs. So in that order... Eliminating all Speaker 6 (12:22) semblance of law from this entire thing, I Speaker 7 (12:25) should say. The law was there and then they're like, let's take it out. Let's just wipe it right away. One brief moment and then Speaker 6 (12:30) you read the order and it disappears. Never mind. You're like, Speaker 7 (12:33) so close, so close. Anyway, so in the order on the shadow docket granting the government stay request, but also granting certiorari, the court tells the parties... that in addition to addressing the questions of jurisdiction, whether the district court has the authority to issue class-wide relief or to issue an APA vacature, as well as the substantive legality of the removal policy, the party should also brief, quote, such other questions that the government determines are appropriate for the proper disposition of the case. So basically, John Sauer. is going to dictate how this goes. He Speaker 5 (13:09) is the 10th Justice Melissa, and he gets to write the questions. There Speaker 7 (13:12) is court expansion. We've done it. Speaker 5 (13:14) Hot Speaker 7 (13:15) court reform summer happened. Speaker 5 (13:17) Not quite what we meant. Not what we meant. Oh, anyway, so close yet again. Speaker 7 (13:22) Expand the court some more. Right. Speaker 5 (13:24) With different people. I mean, this is just to be clear, a bizarre formulation. So such other questions that the government determines are appropriate. Like, it's not. A sentence, a formulation that I can recall seeing, and honestly, more importantly, not one that Steve Vladek, who was literally like the Yoda of SCOTUS knowledge, remembers seeing. So I don't think we have seen this before. And I just want to say it's like the court not only maybe quiet quitting the law, but also ceding to the Trump administration the authority to write the questions presented for review. I mean, I think that Sauer should maybe also, since he is now. Just not symbolically, but actually a justice of the Supreme Court should just submit draft opinions. They can sign off on them and say everybody a whole Speaker 7 (14:07) lot of work. Don't even sign them. Just like a stamp. Speaker 5 (14:10) Yeah. It's just like and also just to state the obvious, there are two sides to this case and only one of them is being asked to formulate this question. And again, in a completely unorthodox and possibly unprecedented way. So nice job with that impartial justice, guys. Speaker 6 (14:25) Yeah. So Yoda, the Supreme Court, Steve Vladek also pointed out that this, the Supreme Court's order, was issued about 11 minutes after the federal government had filed its reply brief. So truly the product of genuine deliberation and careful thought. It's definitely not the case. Wait, Speaker 5 (14:41) how long Speaker 6 (14:41) did it take Neil Gorsuch to sign on Speaker 5 (14:42) to the Dobbs opinion? I want to say also like 11 minutes. It was like a few minutes. Speaker 6 (14:47) Yeah. But I think it might have Speaker 5 (14:48) been Speaker 6 (14:48) almost Speaker 5 (14:49) exactly. It was less Speaker 6 (14:49) than 15. Yeah. I think. So since we are invoking Yoda of the Supreme Court, Steve Vladek, just wanted to note that he has announced that his new book, his forthcoming book out in May, The Court We Need, is actually available for preorder. So Speaker 7 (15:04) be sure to check that out. Speaker 6 (15:05) Spoiler alert. It's not this court. Right. Indeed. And last week they made that very clear. You know, last week I also called this. Shadow Docket, the shit show docket. And again, they just keep insisting on proving us right. Like no matter what we say, it's never harsh enough. Speaker 5 (15:22) I know. I Speaker 6 (15:23) know. Speaker 5 (15:23) Well, we will continue. Nevertheless, she persisted. We shall. And Silver Lining, maybe it'll just completely bump the pre-orders of Vladek's book. And, you Speaker 6 (15:32) know, Speaker 5 (15:32) that's important. Order that book, Speaker 6 (15:35) guys. Speaker 6 (15:36) Strict Scrutiny is brought to you by Cozy Earth. 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Speaker 6 (17:22) This episode is sponsored by BetterHelp. If you've thought about trying therapy with our long-term partner, BetterHelp, insurance options may now be available nationwide, with an average copay for eligible members of just $23 per session. Okay, it's fall, but don't fall into a bad place, especially because October has World Mental Health Day. It's October 10th, but your stress isn't going to wait to kick in until that day. Neither is the burnout. Are all the other structural, systemic problems you... probably are trying to fix with your individual choices. Yes, I see you. And yes, it's not possible. Mental health has to be part of regular life. So don't wait until World Mental Health Day to take care of your mental health. Therapy, it's not just for the big things, like the big stresses, the big life choices, the big crises, like, you know, the Supreme Court. 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Visit betterhelp.com slash strict to explore your payment options. That's betterhelp.com slash strict. Speaker 7 (19:18) So remember when we said that October term 2026 was looking a little light on the docket sheet? Well, now we have third country removals on the docket. And the court has also announced that it will take up another important immigration case, this one regarding the administration's novel policy of indefinitely detaining individuals who cross the border illegally, including years or decades ago, rather than releasing those individuals on bond. And notably, all of this comes in the same week that yet another person. died while in ICE custody. So that makes more than 50 people who have died in ICE custody since the Trump administration took office. All Speaker 5 (20:01) right. Well, so that was a horrifying opening to this episode. Let's move on to different subjects, not lighter or happier particularly, but there's like a little bit more kind of like embedded entertainment in at least the next topic. And that is Jack Smith's testimony last week before the Senate Judiciary Committee. The thing that made... Sorry. I said go Hawks. Speaker 5 (20:25) Right. So as what Leah's alluding to, obviously the thing that made the most news was the senator from Missouri, we don't spend that much time mocking on this podcast, but maybe now we will. We haven't historically. Now we should. We've Speaker 7 (20:36) been Speaker 5 (20:36) focused on Josh Hawley, but Eric Schmidt making a strong showing in his... Obviously, unless you've been hiding under a rock, you know, this kind of catastrophic misfire in his attempt to set a perjury trap for Jack Smith, which evidently involved confusing the NBA team, the Atlanta Hawks, with the college women's basketball team, the Iowa Hawkeyes, which then included Kaitlyn Clark, who's now obviously in the WNBA. Anyway, that was actually delightful. I Speaker 7 (21:02) mean, it's