Showing posts with label 1 AM SCOTUS RULING. Show all posts
Showing posts with label 1 AM SCOTUS RULING. Show all posts

Monday, April 28, 2025

100 days of losses for Trump, 100 days of wins for The Contrarian


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Monday, April 21, 2025

145. Justice Alito's Misbegotten Dissent in A.A.R.P.

 


145. Justice Alito's Misbegotten Dissent in A.A.R.P.

Justice Alito's after-the-fact opinion dissenting from the Court's early-Saturday-morning Alien Enemy Act ruling rests on a revealing array of misrepresentations, misstatements, and non-sequiturs.


Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. We also just launched “First One,” the weekly bonus audio companion to the newsletter for paid subscribers, with the latest episode dropping last night. If you’re enjoying the newsletter, I hope that you’ll consider sharing it (and subscribing if you don’t already):


Obviously, the biggest news out of the Court last week came very late Friday night/early Saturday morning—when the justices temporarily blocked the Trump administration’s ability to use the Alien Enemy Act to remove anyone detained in the Northern District of Texas. (I covered the ruling and its implications in detail in my post from Saturday morning.)

The order from the Court, which dropped a little before 1:00 a.m. EDT on Saturday,¹ noted that a “statement from Justice Alito” would “follow.” That opinion came down late Saturday (sometime after 11 p.m. EDT) in the form of a five-page dissenting opinion, joined in full by Justice Thomas. As Alito dissents from emergency rulings go, the tone of this one is actually relatively mild. But the substance is something else entirely—and bespeaks a justice who was grasping for ways to justify not granting the relief the applicants sought. Given all of the attention that the Court’s original ruling has received, it seems only appropriate to also take a closer look at the Alito/Thomas dissent—and what it portends for those justices’ votes in future emergency applications relating to Trump administration policies (TL;DR: nothing good).

But first, the news.

On the Docket

The Court handed down one opinion in an argued case last week. In Cunningham v. Cornell University, Justice Sotomayor wrote for what was effectively a unanimous Court in clarifying the appropriate pleading standards for certain claims arising under the Employee Retirement Income Security Act of 1974 (ERISA). Justice Alito wrote a separate concurrence, joined by Justices Thomas and Kavanaugh. And that’s about all that needs to be said about that.

Otherwise, the only real news out of the Court last week were the two aforementioned orders. First came Thursday’s order scheduling a (very unusual) May 15 oral argument on the Trump administration’s emergency applications in the birthright citizenship cases. As I explained in detail when the applications were filed, the government is not asking the justices to hold that Trump’s effort to narrow birthright citizenship is lawful; rather, it’s seeking to narrow the scope of the three district court injunctions—so that they’d apply only to the named, individual plaintiffs.

I’m more than a little surprised (and disappointed) that the Court is even holding argument on such a transparent ploy—all the more so since (1) the Court passed on two better vehicles for deciding this exact question in January; and (2) the government’s efforts to manipulate which districts detainees are held in based on where courts have issued TROs in the Alien Enemy Act cases only underscores why nationwide injunctions are important. Perhaps the justices just want to bend over backwards before ruling against Trump. But of the three emergency applications on which the full Court has heard oral argument since 1971 (two in 2022 and one last year), the applicant prevailed in all three. Not a great sign here, IMHO.

But then we got the early-Saturday-morning ruling in A.A.R.P. (the initialism is a coincidence), which, as I suggested a bit later on Saturday morning, suggests that at least a majority of the justices are tiring of the Trump administration’s Calvinball. For now, the ruling just temporarily blocks the removal, under the Alien Enemy Act, of anyone who was, is, or will be held in the Northern District of Texas. But even that intervention, coming when and how it did, was a big deal all by itself. Justice Alito published his dissenting opinion (about which more shortly) a little after 11 p.m. on Saturday, bringing to an end a week that had started quietly, and turned momentous in a hurry.

This week won’t even start quietly. We expect a regular Order List at 9:30 this morning, followed by the beginning of the April argument calendar—the last regularly scheduled argument session of the October 2024 Term. Tomorrow at 10, we expect one or more rulings in cases argued earlier in the Term. And the Court still has two major pending emergency applications to deal with (A.A.R.P., where the ACLU’s application remains pending; and Wilcox, where the Trump administration’s application to let it fire members of the NLRB and MSPB remains pending), to say nothing of other cases that might make it back to the Court this week in a hurry (e.g., Abrego Garcia).

In case you’re wondering, almost none of this is “normal.” The April argument session is usually when the justices kick into high gear for the home stretch of the Term—with all cases argued and with opinions circulating. But the remarkable amount of emergency docket activity over the past two weeks is just about unprecedented—as is the extent to which there’s no reason to think it’s behind us.

The One First “Long Read”: Alito’s A.A.R.P. Dissent

As noted above, late Saturday night, Justice Alito filed a five-page opinion publicly dissenting from the Court’s very-early-Saturday ruling in A.A.R.P. Rather than let Alito’s opinion (or the public commentaries endorsing it) go unanswered, I thought it would be useful to analyze the specific arguments he proffers—some of which are just wrong; some of which are non-sequiturs; and some of which are truly galling.

To do so, I go through the seven bullet points in Alito’s dissent in order, with one warning: Just about all of Alito’s objections rest on technical arguments about the Supreme Court’s jurisdiction and various procedural rules. I’ll do my best to make what follows accessible, but there’s a bit more legalese in what’s coming than I usually prefer. And although it should be obvious, I’m not quoting each of the bullet points in full; rather, I’m quoting them to the extent necessary to identify the claim advanced therein.

Bullet 1: “It is not clear that the Court had jurisdiction.”

This claim is almost specious. The Supreme Court’s power to review cases from the lower federal courts is remarkably capacious. Unlike appeals from state courts (where the Court can review only “final” rulings), there’s no similar restriction on its power to hear appeals from lower federal courts. Instead, 28 U.S.C. § 1254(1) authorizes review by certiorari as soon as a case is “in” a court of appeals—including “before or after rendition of judgment or decree.” And the Court has held that a case is “in” a court of appeals as soon as it is properly docketed therein (that is, just about as soon as it gets there). There’s no question that the ACLU’s appeal was “in” the Fifth Circuit when the Supreme Court ruled early Saturday morning. Thus, as a matter of statute, the Court’s appellate jurisdiction was satisfied.

Alito tries to argue that the district court’s denial of the ACLU’s request for a temporary restraining order (TRO) could not be immediately appealed, and therefore the ACLU’s appeal wasn’t “in” the court of appeals. There are at least two independently fatal problems with this assertion. First, a case is “in” a court of appeals for purposes of the Supreme Court’s appellate jurisdiction even if the court of appeals ultimately holds that it doesn’t have jurisdiction. That’s because the Supreme Court’s power to hear an appeal does not turn on whether the court of appeals properly had jurisdiction under the separate jurisdictional statutes for those tribunals. Were it otherwise, the Supreme Court would never be able to review decisions by courts of appeals holding, even incorrectly, that they lack appellate jurisdiction. Thus, it seems quite clear that the Court did have—and does have—jurisdiction to grant the relief the ACLU is seeking.

Second, and in any event, the Supreme Court just expanded the circumstances in which district court rulings on TROs can be immediately appealed—in a pair of rulings in which Justice Alito was … in the majority. Alito never explains why the TROs in the Department of Education and J.G.G. cases were immediately appealable, but the denial of a TRO in this case was not.²

Bullet 2: “It is questionable whether the applicants complied with the general obligation to seek emergency injunctive relief in the District Court before asking for such relief from an appellate court.”

Here, Alito’s objection is that the ACLU didn’t give the district court enough time to rule on its renewed request for a TRO before seeking emergency relief from the Fifth Circuit, complaining that the ACLU went to the Fifth Circuit just 133 minutes after it sought emergency relief from the district court (which it had asked to rule within 45 minutes).

That timing is certainly an unusually quick turn by ordinary litigation standards. But (1) the ACLU still did “seek emergency injunctive relief in the District Court”; (2) the circumstances were rather extreme (numerous media accounts suggest that detainees at Bluebonnet were being loaded onto buses); and (3) the rule Alito cites (Rule 8 of the Federal Rules of Appellate Procedure) does not require litigants to give lower courts any specific amount of time to rule—and, indeed, requires litigants to ask lower courts first only “ordinarily.” Rule 8(a)(2)(A)(ii) specifically contemplates emergency relief from a court of appeals when “a motion having been made, the district court denied the motion or failed to afford the relief requested.” Thus, the “general obligation” Alito describes, even if it’s mandatory, was satisfied here.

Bullet 3: “[U]nder this Court’s Rule 23.3, ‘[e]xcept in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested was first sought in the appropriate court or courts below or from a judge or judges thereof.’”

Frankly, I don’t even understand this point. The Rule, as correctly quoted by Alito, requires applicants only to seek emergency relief from the relevant lower courts before asking the Supreme Court for the same; it does not require those courts to rule before the Supreme Court can step in. Nor would the alternative make any sense. Yes, the Court in the ordinary course will usually wait for the lower courts to rule before it steps in. But there’s no formal requirement that the Court wait. And Alito doesn’t quite bring himself to argue otherwise. The bullet point thus implies nefariousness where none exists.

Bullet 4: “The only papers before this Court were those submitted by the applicants. The Court had not ordered or received a response by the Government regarding either the applicants’ factual allegations or any of the legal issues presented by the application.”

Again, this is factually correct, but not any kind of objection to the Court’s power to rule. Just like a TRO in the district court, there are some circumstances in which the justices feel impelled to act without waiting to hear from the adverse party. That’s what every “administrative stay” from a Circuit Justice entails (including those entered by Justice Alito); and there are also examples from earlier this Term of the full Court acting without waiting for a response, too. Calling for a response before the full Court rules is certainly the norm, but there have been plenty of exceptions.³

Bullet 5: “The papers before us, while alleging that the applicants were in imminent danger of removal, provided little concrete support for that allegation.” [And the standard for an injunction pending appeal is supposed to require more.]

I have been rather … dogmatic … about how much the Supreme Court has flouted the standard for an injunction pending appeal in various rulings over the last few years. (In a nutshell, the Court has regularly granted this especially coercive form of emergency relief in contexts in which applicants couldn’t possibly have satisfied the high bar for obtaining it.) I’m sure it won’t shock you to learn that Justice Alito was in the majority in each and every one of the rulings I’ve criticized on that score.

But even if the Court were to hew to the requirement that coercive relief be granted only when the applicant’s right to such relief was “indisputably clear,” Alito jumps right over the obvious reason why the applicants’ rights to the notice and judicial review they’re seeking in A.A.R.P. was “indisputably clear”: Because the Supreme Court, in an opinion Alito joined, just articulated those rights in the specific context of the Alien Enemy Act on April 7. Indeed, the Court in J.G.G. expressly held that “AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” Insofar as the application claims that the Court’s own directives in J.G.G. have not been followed, and that the government was planning to imminently remove at least some of the applicants under the AEA without complying with J.G.G., it sure seems like the standard for an injunction pending appeal was satisfied.

Bullet 6: “[A]n attorney representing the Government in a different matter informed the District Court in that case during a hearing yesterday evening that no such deportations were then planned to occur either yesterday, April 18, or today, April 19.”

This is perhaps the most troubling point Alito makes in his dissent. He is, quite obviously, referring to an exchange between a Justice Department lawyer (Drew Ensign) and Chief Judge Boasberg in the emergency hearing Boasberg held Friday afternoon in the J.G.G. case (where the ACLU was also trying to get a new TRO to block the apparently imminent AEA removals of folks from Texas). According to multiple accounts of folks who were listening, Ensign said he was unaware of any flights scheduled for Friday, but that he was specifically instructed to “reserve the right” for the government to conduct removals on Saturday, April 19. In other words, the DOJ lawyer did not say what Alito said he said.

What’s more, according to NBC News, at least 28 AEA detainees were placed on a bus at the Bluebonnet detention facility on Friday night—and were heading for the Abilene airport before the bus turned around. This at least appears to suggest that the government was potentially planning to have a flight take off shortly after midnight on Saturday—which would not have been inconsistent with the letter of Ensign’s representation, even if it would have been inconsistent with the notice and process that J.G.G. required.

This matters because the entire premise of Alito’s dissent is that the Court intervened “hastily and prematurely.” But to get there, Alito had to misstate (if not misrepresent) what the government had told Chief Judge Boasberg, and then discount the ACLU’s credible allegations, as backed up by numerous media reports, that additional removals were impending. To be sure, the NBC News report (which includes video of the bus) was not published until Sunday morning—after Alito filed his dissent. But even if one is willing to take Justice Department lawyers at their word these days, Ensign had gone out of his way to “reserve the right” to have removals take place on Saturday—which seems to rather decisively undercut Alito’s claim that the Court acted “prematurely.”

Bullet 7: “Although the Court provided class-wide relief, the District Court never certified a class, and this Court has never held that class relief may be sought in a habeas proceeding.”

“Class-wide” relief means relief not just to the named plaintiffs, but to everyone who is similarly situated to them and has been identified by the court. In A.A.R.P., that class includes “[a]ll noncitizens in custody in the Northern District of Texas who were, are, or will be subject to” President Trump’s Alien Enemy Act proclamation. Thus, Alito is arguing that the Supreme Court erred for two reasons: Because the lower court hadn’t allowed the case to proceed on a class-wide basis; and because the Supreme Court has never said a habeas petition can be brought on behalf of a class of litigants.

Both of Alito’s points here are super technical and very slippery.

First, nothing stops appellate courts from granting emergency relief to a whole class of litigants just because a district court hasn’t yet certified a class. Again, imagine what it would mean otherwise—that a district court’s refusal to certify a class would categorically prevent appellate courts from providing any relief to anyone beyond the named plaintiffs until and unless they’ve reversed the district court on the merits of class certification. That is once again putting the cart before the horse. Provisional class certification for purposes of emergency relief is unusual, but it’s not unheard of. And once you accept that proposition, the idea that an appellate court could grant such relief when a lower court did not should hardly seem that troubling.

Second, it is technically correct that the Supreme Court “has never held that class relief may be sought in a habeas proceeding.” Indeed, this was one of the big reasons why I was critical of the majority ruling in J.G.G. (which funneled most, if not all, of the Alien Enemy Act litigation into habeas).⁴ But there are two things Alito doesn’t tell unsuspecting readers that (1) he knows; and (2) are surely relevant:

For starters, the Court has reached the merits in a number of habeas cases in which the petitioners were a class; Alito even wrote the majority opinion in one of the more recent examples. And if that weren’t enough, all six circuit courts of appeals that have specifically decided whether habeas class actions are permitted have answered that question in the affirmative. Thus, the Court has specifically allowed class-based habeas claims to go forward, including in the immigration context, and including in opinions by Alito. And no appellate court has suggested that class-wide relief is unavailable in habeas petitions, even if the Supreme Court has never expressly held that it is.

***

Alito closes his dissent by insisting that “The Executive must proceed under the terms of our order in [J.G.G.], and this Court should follow established procedures.” The problem is that his dissent would have effectively cleared the way for the Executive to flout J.G.G. with no repercussions—in the name of abiding by procedures that the Court (to say nothing of the ACLU) … did not actually violate.

It would be bad enough if Alito’s dissent were merely tone-deaf. But its effort to find something wrong with the majority’s intervention smacks of an attempt not to take the law where it leads him, but to try to manufacture a justification for sitting on his hands while even more folks are wrongly removed to a Salvadoran prison, from which it is proving increasingly difficult to get anyone back. It’s fortunate that only one of his colleagues joined him.

SCOTUS Trivia: Justice O’Connor, Presiding

Today’s trivia will be short and sweet, and comes with a big tip of the hat to Dylan McGowan—who brought the second part of it to my attention.

I suspect just about everyone knows that, except on The West Wing, there has never been a woman to serve as Chief Justice of the United States (which is why we still refer to the Court’s senior member as “Mr. Chief Justice”). But it turns out that, in the 235-year history of the Court, there have been exactly two days on which a woman justice nevertheless publicly presided over the Court: Monday, April 3, 1995; and Monday, February 22, 2005.

On both of those dates, Chief Justice Rehnquist and the Court’s senior associate justice, John Paul Stevens, were absent. That left Justice Sandra Day O’Connor (whom Alito replaced in 2006) as the senior justice on the bench, as reflected in the Court’s official Journal for April 3, 1995; and for February 22, 2005. It was thus O’Connor who convened the Court on both mornings; who announced the orders; and, for the 2005 date, specifically, who became the only woman justice to preside over oral arguments (including in Kelo v. City of New London).

Justice Ginsburg never presided over the Court during the 3.5 years it was mathematically possible (from when Justice Gorsuch joined the Court in 2017 through her death in 2020).⁵ Today (and since July 2022), only Justice Sotomayor is theoretically eligible to preside—but only if Chief Justice Roberts and Justices Thomas and Alito are all absent. Suffice it to say, that hasn’t happened yet.

These were two very small cracks in the Court’s glass ceiling. Hopefully, we’ll see bigger ones in our lifetimes.

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to e-mail me. And if you liked it, please help spread the word!


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1

I’ve noted before that, for reasons I don’t really understand, the Court doesn’t timestamp its rulings. I’ve thus used in the past, and use here, the time when the Court’s Public Information Office distributes rulings to the Court’s press corps—which, in my experience, is never after the ruling posts online, and can sometimes be more than a few minutes beforehand. I have reason to believe that the parties receive the rulings even earlier than the press does—which is what should matter, at least legally.

2

Alito doesn’t make an argument that some right-wing commentators have advanced—that the Supreme Court lacked constitutional jurisdiction to issue coercive relief because it was an exercise of the Court’s “original,” rather than “appellate” jurisdiction. This reasoning would not do well on my Federal Courts exam. Since 1807, the Supreme Court has made clear that a case properly invokes its constitutional “appellate” jurisdiction so long as it seeks review of something that some lower court did. Here, the ACLU asked the Court to provide the very emergency relief that the district court had refused to provide. That’s an appeal for constitutional purposes, regardless of how it reaches the justices. Nor is there any flaw with the Court directly issuing coercive relief. Were it otherwise, the Court would have been powerless, among other things, to block President Obama’s Clean Power Plan; OSHA’s COVID vaccination-or-testing mandate; or various New York and California COVID mitigation measures.

3

It also seems worth returning to a question I raised in my post on Saturday morning, which is why Justice Alito didn’t just rule on his own—since some kind of temporary injunction from the Circuit Justice would have obviated the need for all of this, and would have, as a matter of course, come before ordering the other side to respond.

4

I was also worried about the possibility that district courts in Texas and the Fifth Circuit would be more hostile to claims against the Trump administration than what we’ve seen from the geographically diverse array of courts to consider such claims to date. Alas, the maneuverings in A.A.R.P. thus far have done nothing to disabuse me of that concern.

5

The math here stems from the six-justice requirement for a quorum. Thus, the presiding justice when there are nine active justices has to be either the Chief Justice or one of the three senior associate justices.

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