'Ouch': Elena Kagan shocks ex-prosecutor with blistering attack on Trump lawyers

Former federal prosecutor Joyce Vance praised Justice Elena Kagan's dissent in the Supreme Court's recent ruling on Temporary Protected Status as a devastating rebuke of the conservative majority — one that forced into print the very comments her colleagues "cannot even bear to repeat."

Writing in her newsletter, Civil Discourse, Vance broke down the 6-3 decision, authored by Justice Samuel Alito, which held that courts cannot review a president's decisions about TPS. The ruling cleared the way for the Trump administration to end protections for roughly 336,000 people legally present in the U.S. due to natural disasters and armed conflict in their home countries, including Haitians and Syrians.

Vance noted the decision's striking detail that Justice Amy Coney Barrett, who has two adopted children from Haiti, joined the majority.

The heart of Vance's analysis centered on the majority's handling of a claim that the administration's decision was impermissibly based on race. Vance argued the Court's willingness to disregard the evidence was "so transparently in contravention of the facts" that it suggests the exception for constitutional claims "exists on paper" but will never carry weight with this Court.

It was Kagan's dissent, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, that Vance singled out as essential reading. She highlighted Kagan's pointed observation that the evidence of racial motivation was "plain to see, in the President's statements, which the majority (and for that matter, his own lawyers) cannot even bear to repeat."

"Ouch," Vance wrote.

Vance walked through the legal standard at issue, drawn from the 1977 case Arlington Heights v. Metropolitan Housing Development Corp., under which plaintiffs need only show that a discriminatory purpose was "a motivating factor" in the decision. She emphasized Kagan's accounting of the remarks the majority declined to reproduce — including President Donald Trump's claims about Haitians eating pets, his description of Haiti as a "s---hole country," and his assertion that Haitian immigration was "like a death wish for our country" and "poisoning the blood" of the nation.

Vance underscored Kagan's blunt conclusion that the references "of filth, disease, and primitiveness — are shot through with racial stereotypes and tropes," and that it was "hard to imagine the statements being made today of any White community."

Quoting Kagan's assessment that the statements "fairly shout, in their racial undertones and overtones alike, that race entered into the President's resolve to remove Haitians from this country," Vance argued the majority chose to ignore them in order to hand still more power to a president willing to abuse it.

Vance also drew attention to the human stakes Kagan foregrounded, recounting the case of plaintiff Fritz Emmanuel Lesly Miot, a Haitian national who has held TPS for 15 years and works in a California laboratory researching Alzheimer's. Miot, who suffers from Type 1 diabetes, would face what Vance described as potentially fatal consequences if forced to return to Haiti's collapsed healthcare system.

Looking ahead, Vance cautioned readers not to celebrate if the Court rules against Trump in the separate birthright citizenship case expected this week, arguing that rejecting such a "boldly illegal" effort to rewrite the Constitution is "a low bar for the Supreme Court to clear."

She closed by placing the TPS ruling in grim historical company, predicting it would join decisions like Dred Scott and Korematsu in what she called "a Supreme Court walk of shame."