“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump justices Brett Kavanaugh and Neil Gorsuch cast deciding votes in a 5-4 order to allow construction of the Trump border wall to continue, even though the district court order stopping it as illegal had been affirmed on the merits by a court of appeals and the result could well be to allow the challenged parts of the wall to be completed before the Court even decides whether to take the case. The July 2020 order was in Trump v. Sierra Club.

In a decision last year, a California federal district court agreed with a challenge by the Sierra Club and others that the Trump Administration was illegally using $2.5 billion in Defense Department funds to build Trump’s border wall and enjoined that spending. When the Ninth Circuit declined to stay the order pending appeal, the Administration went to the Supreme Court, which issued a 5-4 order last year (as to which Kavanaugh and Gorsuch cast deciding votes) suspending the order while the litigation went forward.

This year, the Ninth Circuit completed its review on the merits and affirmed the district court’s order (with a dissent filed by a Trump judge). The Sierra Club promptly went to the Supreme Court asking that the Court lift the stay and allow the district court order to be enforced, since the ruling had been affirmed on the merits and, otherwise, the Administration would be able to finish building the parts of the wall that it is challenging before the litigation could be concluded.

In an unsigned one-sentence order in which Kavanaugh and Gorsuch again cast deciding votes, the Court voted 5-4 to deny the Sierra Club motion and keep the stay in place. On behalf of the four moderate justices, Justice Stephen Breyer strongly dissented. He pointed out that the government had already avoided the alleged irreparable injury that it claimed justified the stay a year ago by finalizing construction contracts, and that the Court’s decision now to let construction continue could well “operate[e], in effect, as a final judgment” in its favor.

Despite the Court’s order, an attorney for the plaintiffs vowed to continue with the litigation, noting that the Administration had previously claimed that it could take down the wall if necessary, and that they would continue to seek the “removal of every mile of unlawful wall built.” In the meantime, however, serious injury will continue as the wall construction goes on, despite the findings against it by federal district and appellate courts.