Is the Alito/Thomas Dissent From the 1 AM Order Naive, Disingenuous, or Callous?

Just before 1 AM on the morning of Saturday, April 19, the Supreme Court issued an order directing the U.S. government not to remove (i.e., send to El Salvador) any member of a group of Venezuelans currently detained in Texas pending the Court's further order. The Court acted early Saturday morning because it appeared that the Trump administration was about to violate the limits on removals set forth in its April 7 per curiam opinion. That opinion made clear that if the government wishes to remove the Venezuelans, it must provide them with notice of that intention "a reasonable time" before doing so "and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."

The Venezuelans in detention had received papers in English (which many do not read or speak) notifying them of imminent removal. Nowhere did these notices state that a hearing via habeas was an option. The ACLU promptly sued, and when the district court did not act with alacrity, filed appeals in both the Fifth Circuit and the Supreme Court. Undoubtedly, the justices agreed with the plaintiffs that there was a substantial risk that unless they acted immediately, the Venezuelans would be loaded onto planes and sent to El Salvador, where they would be beyond the reach of habeas corpus.

The April 7 per curiam was unanimous with respect to the government's notice obligation (although there were dissents on other points). Yet the early-Saturday-morning order was 7-2. Justice Alito, joined by Justice Thomas, dissented. Why?

Because of the need to act quickly, the order was issued before a written dissent was prepared, but now we have the published dissent. It's only four and a half pages. I summarize it here because I want to respond to most of the points it raises.

My overall take is this: Justice Alito raises some procedural objections that might be valid in a different case involving a different presidential administration. However, given what we know about the current administration, his insistence on a strict interpretation of various procedural rules at the cost of substantive justice implies that he and Justice Thomas are either naive about the Trump administration, disingenuous in their reasoning, or simply callously indifferent to the fate of the Venezuelans.

Here are the points the dissent makes, in order, followed in each instance by a very brief analysis:

1) The plaintiffs sought a temporary restraining order (TRO) from the district court. Denial of a TRO is not technically appealable but in cases like this, the courts sometimes treat the denial of a TRO as equivalent to the denial of a preliminary injunction (PI), which, in emergencies, is immediately appealable. Justice Alito nonetheless objects that the district judge did not even deny a TRO; he simply hadn't yet ruled on the plaintiffs' motion.

Yet the plaintiffs argued that the failure of the district court to rule immediately was a de facto PI denial, because of the imminent risk that the Trump administration would remove them. Justice Alito was unmoved by that prospect, either because he thought it unlikely (naive), pretended it was unlikely (disingenuous), or didn't care (callous).

2) Although denominated as an additional reason, Justice Alito next repeats what is essentially the same objection by noting that parties seeking emergency relief must apply to the district court first. Here, he says, the plaintiffs circumvented that rule by not giving the district judge enough time to rule: "When the applicants requested such relief in the District Court, they insisted on a ruling within 45 minutes on Good Friday afternoon, and when the District Court did not act within 133 minutes, they filed a notice of appeal."

It's not clear to me why the fact that it was Good Friday matters. The vast majority of Venezuelans are Catholic, with Protestant Christian sects accounting for a substantial portion of the rest of the population, so many of the plaintiffs might have been observing Good Friday, but that can hardly be a reason to remove them. Presumably Justice Alito invokes the fact that the motion arrived on Good Friday to excuse the district judge's failure to act for over two hours. But the question isn't whether the district judge acted culpably; the question is whether his failure to rule created an emergency given the risk of imminent removal.

3) Justice Alito next complains that the Supreme Court should have followed the usual course and waited for Fifth Circuit to rule before taking any action of its own. After all, he writes, the justices "were informed that a [Fifth Circuit] decision would be forthcoming."

Forthcoming when? I have had a law review article forthcoming in Constitutional Commentary for nearly a year now. It will undoubtedly be published eventually, but, to restate the obvious, the plaintiffs were seeking emergency relief. If Justice Alito had reason to think that, at the moment the Supreme Court ruled, a Fifth Circuit decision was forthcoming in the next two minutes, that might be a reason to wait those two minutes, but he had (or at least articulated) no such reason.

4) Justice Alito is also peeved that the Supreme Court ruled without first giving the government a chance to respond to the emergency stay application. He notes that the district court had ordered a response within 24 hours and "was poised to rule expeditiously."

This point is doubly problematic. First, as with Justice Alito's other objections, this one utterly fails to give weight to the imminence issue. Under the circumstances, 24 hours (plus the additional time that would be needed to bring the case to the Fifth Circuit and thence the Supreme Court) would be enough time for the government to unlawfully but effectively moot the stay application by removing the Venezuelans.

Second, the SCOTUS majority did not in fact deny the government an opportunity to respond. The Court invited the Solicitor General "to file a response to the application before this Court as soon as possible." By granting the stay but simultaneously asking the SG to file a response, the Court preserved the status quo so that it can consider--perhaps in the next few minutes or hours--whether to leave the stay in place or to rescind it. The grant was thus the equivalent of an administrative stay, which can be granted without waiting for a response.

Notably, the SG has now filed a response. It repeats some of Justice Alito's timing objections as well as making some additional contentions. I won't analyze the response in this essay.

5) Justice Alito's dissent also says that the papers filed in the Supreme Court by the plaintiffs "provided little concrete support for that allegation" "that the applicants were in imminent danger of removal." 

I'll combine my response to this objection with my response to the next one.

6) Justice Alito says the plaintiffs were not in fact in imminent danger of removal because "an attorney representing the Government in a different" case "informed the District Court in that case during a hearing [the previous] evening that no such deportations were then planned to occur" within the next day and a half.

Even taken at face value, that's very unpersuasive. The fact that no removals "were then planned" would not have precluded the government from changing its plans and carrying out such removals imminently. Moreover, even if it's possible to read the government attorney's representation as a promise not to carry out any removals, the Trump administration's pattern of behavior with respect to Venezuelans it seeks to remove and more broadly indicates it cannot be trusted to live up to assurances to--or even to comply in good faith with orders from--district courts. Once again, we are left wondering whether Justices Alito and Thomas are being naive, disingenuous, or callous.

7) Justice Alito also complains that although the plaintiffs are seeking class relief, the case has not been certified as a class action. The government's opposition filed on Saturday echoes this point, offering ostensible reasons why it should not be so certified.

This objection, like all of the others, gives no real weight to the emergency posture of the case. There has not yet been time for the district court to decide whether to certify the case as a class action, but absent the order the majority granted, the government might well have carried out removals that would have mooted the class certification issue by removing the putative class members. Thus, the majority treats the case as a class action only for purposes of preserving the status quo. The dissent offers no explanation of how to preserve an opportunity for the plaintiffs to obtain class certification (if it is warranted) without putative class treatment.

8) Justice Alito concludes with the following nice-sounding declaration: "Both the Executive and the Judiciary have an obligation to follow the law. The Executive must proceed under the terms of our order [of April 7] (per curiam), and this Court should follow established procedures."

The difficulty with the first half of that declaration--that the Trump administration must follow the Court's earlier order--is that there were indications that it wasn't following the guidance contained in that order. Under the circumstances, the established procedures should be construed so as to maximize the Court's ability to secure compliance.

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I shall conclude with a final observation--this one regarding the Trump administration rather than Justice Alito. There is evidence that the Trump administration is violating court orders in numerous cases. The only two in which the arguable violations are of Supreme Court orders are this litigation--concerning the April 7 order--and the Abrego Garcia case, where the government has thus far failed to lift a finger to facilitate Abrego Garcia's return. That said, it is possible to argue--even if just barely--that the administration has not yet directly defied the Supreme Court.

The April 7 per curiam opinion said that the government was obligated to provide people subject to removal with notice and a genuine opportunity to file habeas petitions, but it did not literally order that. Likewise, the government's shenanigans with respect to the meaning of "facilitate" have been playing out in the lower courts. It is thus possible that the administration, when push comes fully to shove, would obey a direct order of the U.S. Supreme Court in circumstances in which it would disobey the orders of lower courts.

That's potentially good (or rather, not the worst possible) news for the rule of law, but it sets up an unhealthy dynamic. For one thing, there is no sound legal justification for disobeying (as opposed to appealing) lower court orders. For another, if the Trump Department of Justice has concluded that it can violate orders of lower courts but will, however reluctantly, obey SCOTUS orders, that sets up an unhealthy dynamic in which every case of consequence will be fast-tracked to the Supreme Court in an emergency posture, merely to preserve the status quo.