...remands the case to the Fifth Circuit, specifically telling it to address "normal preliminary injunction factors, including likelihood of success on the merits, as to the named plaintiffs' underlying habeas claims" and the issue of "what notice is due, as to the putative class's due process claims against summary removal." I will unpack these. 4/

There are different kinds of injunctions that courts may issue early in litigation. The earliest kind is a temporary restraining order, which is what the U.S. Supreme Court today formally issued. A TRO is given only when there is an urgent need to preserve the status quo and the consequences of not doing so would irreparably and seriously harm the party seeking protection. 5/

When a TRO is granted, the next step in early-phase injunctive relief is a temporary injunction, which directs the defendant as to what it must or must not do while the substantive litigation is ongoing. To win a temporary injunction, a party has to establish it is likely to succeed on the merits of the substantive litigation, as well as satisfy some other factors. 6/

Part of what the Supreme Court has done today is to instruct the Fifth Circuit that it must conduct the temporary injunction analysis. The Fifth Circuit may not send the issue back to the District Court; nor may it refuse to entertain the plaintiff-detainees' motion for a temporary injunction. 7/

So far, I've been describing the procedural mechanics ordered by the Supreme Court today. The majority's opinion makes it clear that seven of the justices understand that the District Court judge refused to rule on the detainees' request for an emergency TRO for over 14 hours, while the Trump regime made it clear it reserved the right to remove detainees upon only a few hours notice, which the regime subsequently attempted. 8/

Seven Supreme Court justices also understand that the Trump regime is attempting to send Venezuelans detained under the AEA to El Salvadoran prisons, from where the regime disclaims any ability to return them. They explicitly reference what has happened in Abrego Garcia v. Noem. 9/

It is also clear that there is no current consensus among those seven justices as to whether class certification is appropriate for substantive habeas corpus relief nor whether it is appropriate in this case. I discuss this very important issue in the newsletter I mentioned, which is at heidi-says.ghost.io/the-latest…. But whatever the respective justices' positions on these matters, they agree that a putative class certification for purposes of ensuring adequate notice and hearing is appropriate.10/

There is no indication in today's majority opinion as to whether there is agreement or disagreement on the validity of Trump's use of the AEA to proclaim TdA a foreign invasionary force. The majority opinion simply does not get to this issue. 11/

Bottom line, the majority wants lower courts to expeditiously figure out the notice and hearing requirements that would satisfy due process for the Venezuelan detainees and the issue of likelihood of their success on the underlying merits. The seven justices are trying impose order on the chaos the Trump regime has created. 12/

The seven justices in today's majority are are willing to protect the due process rights of people the regime is trying to remove via the AEA, but they aren't, as a group, prepared to say anything about whether its seems likely that detainees given adequate time to contest their removal would prevail. 13/

Meanwhile, Alito's dissent, joined by Thomas, makes it clear these two are fine with 12 to 36 hours notice and that they don't think any of the underlying substantive issues should be given class treatment. They think that short notice, given only in English, provides sufficient due process to detainees who only speak Spanish and who may well not know what habeas relief is, let alone how to seek it. 14/