The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
What Exactly Did Justice Barrett Disagree With The Majority About In Trump v. JGG?
Justice Barrett tells us to read the opinion, but there is nothing to read.
The vote in Trump v. JGG was 5-4. Here, Chief Justice Roberts joined Justices Thomas, Alito, Gorsuch, and Kavanaugh. This case was largely a victory for President Trump, in that the case can be heard in the Fifth Circuit, rather than the D.C. Circuit. Still, the Court went beyond its ambit. The only requested relief was to vacate the lower court's ruling. But the Court held that the government must also afford the aliens a hearing before they can be removed. Here, there was a subtle merits ruling on the shadow docket.
Justice Sotomayor wrote a dissent which Justices Kagan and Jackson joined in full. Justice Barrett joined only Parts II and III-B. Last week I wrote that Justice Barrett's vote in the Department of Education case did not signal a sea change. I also wrote that Justices Sotomayor and Jackson were not looking to alienate Barrett by calling out any hypocrisy with the USAID case. JGG makes me more confident in my speculation.
In JGG, Justice Barrett did not write separately to explain which parts of the majority opinion she in fact disagreed with. As I'll explain, it isn't clear to me exactly what Justice Barrett thinks.
Part I-A of the dissent lays out the the history of the Alien Enemies Act. Parts I-B and I-C provide the facts and procedural posture of the case. Justice Barrett apparently does not agree with these parts of the dissent, though it is not clear why.
Part I-D charges that the government flouted Judge Boasberg's orders. I think it significant that Justice Barrett did not join this part. I doubt she agrees with the thrust of the ongoing contempt proceedings. And Part I-E repeats the refrain that the Supreme Court should let this issue "percolate" in the lower courts. Here, I think Justice Barrett agrees with the majority: further proceedings in a lower court that lacks jurisdiction would result in "wasteful delay."
Part II of the dissent, which Justice Barrett joins, is only two paragraphs long. This part agrees with the majority that the aliens are entitled to due process before removal. Again, all nine Justices agree on this basic point. It is true--federal judges in Texas and in the Fifth Circuit are bound by the Due Process Clause.
Then we get to Part III of the dissent. Justice Barrett only joins Part III-B. She does not join Part III-A and Part III-C.
Part III-A is only two paragraphs long. Here, Justice Sotomayor argues that the Court lacks jurisdiction to review the TRO. Barrett rejected this argument on Friday in Department of Education v. California. Chief Justice Roberts did not join the majority in the DOE case, but he agrees with this ruling in JGG. Thus, all six conservatives are on board with reviewing these sorts of TROs. I consider that matter settled. Lower courts, take note.
Part III-B is the only substantive portion of the dissent that Justice Barrett joins. It begins:
Also troubling is this Court's decision to vacate summarily the District Court's order on the novel ground that anindividual's challenge to his removal under the Alien Enemies Act "fall[s] within the 'core' of the writ of habeas corpus" and must therefore be filed where the plaintiffs are detained. . . . This conclusion is dubious.
Barrett is not even willing to say the majority is wrong here. She is only willing to go along with "troubling" and "dubious." I take it that Justice Barrett simply isn't sure here, and would not reach this holding at this point. But does Justice Barrett disagree about the venue issue? Does she think this case properly belongs in Texas? What would a process-formalist originalist do here? I can't tell you because Justice Barrett won't say. This dissents reminds me of the Trump immunity decision, where it was entirely unclear what parts of the majority that Justice Barrett would join. Early in Justice Barrett's career, she told us to "read the opinion." Yet she writes less than any member of the Court, and frequently leaves us guessing what she actually thinks. Academics have the luxury of not addressing all issues at once, and instead we can deliberately walk through complex matters on our own timelines. Supreme Court justices do not have that luxury in fast-moving litigation.
Part III-C finds that the government would not suffer enough harm to justify the Court's intervention now:
The Government may well prefer to defend against "300 or more individual habeas petitions" than face this class APA case in Washington, D. C. Ibid. That is especially so because the Government can transfer detainees to particular locations in an attempt to secure a more hospitable judicial forum. But such a preference for defending against one form of litigation over the other is far from the kind of concrete and irreparable harm that requires this Court to take the "'extraordinary'" step of intervening at this moment, while litigation in the lower courts remains ongoing.
A more "hospitable judicial forum"? Tell us what you really think about the Fifth Circuit! As it stands, the ACLU tried to bring suit in a hospitable forum, but made a legal error. So now the cases will be heard where the aliens are detained.
Part III-C also cites the Garcia case, in which the Government asserted that aliens in the El Salvador prison cannot be returned.
The Government's resistance to facilitating the return of individuals erroneously removed to CECOT only amplifies the specter that, even if this Courtsomeday declares the President's Proclamation unlawful, scores of individual lives may be irretrievably lost.
Finally, Justice Sotomayor writes that the Trump Administration's "noncompliance" gives it "unclean hands." As a result, equity cuts against the executive branch. Once again, I think it is telling the dissenters treat the United States like any other party in a court of chancery.
Far from acting "fairly" as to the controversy in DistrictCourt, the Government has largely ignored its obligations to the rule of law.
In any event, Justice Barrett does not join Part III-C.
As best as I can tell, Justice Barrett thinks the majority might have gotten the habeas issue wrong, but I am not certain if she agrees with the venue point otherwise.
Finally, Justice Barrett does not join the conclusion that comes after the three asterisks:
The Government's conduct in this litigation poses an extraordinary threat to the rule of law. That a majority of this Court now rewards the Government for its behavior with discretionary equitable relief is indefensible. We, as a Nation and a court of law, should be better than this. I respectfully dissent.
Justice Jackson, for her part, compares the majority to Korematsu. Scratch that, she says the Korematsu Court behaved better because they left a record because it was decided on the merits docket.
I lament that the Court appears to have embarked on a new era of procedural variability, and that it has done so in such a casual, inequitable, and, in my view, inappropriate manner. See Department of Education v. California, 604 U. S. ___ , ___ (2025) (JACKSON, J., dissenting) (slip op., at 1–2). At least when the Court went off base in the past, it left a record so posterity could see how it went wrong. See, e.g., Korematsu v. United States, 323 U. S. 214 (1944). With more and more of our most significant rulings taking place in the shadows of our emergency docket, today's Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.
Is Justice Jackson really praising the Korematsu Court for moving slowly and deciding the case deliberately on the merits docket? Wouldn't it have been better if the Court ruled on the exclusion issue years earlier--perhaps when Hirabayashi came to the Court? Does Justice Jackson know the history of Korematsu? According to the best evidence, the Court deliberately held off on deciding the case until the executive branch had already rescinded the exclusion order. There was apparent collusion between the executive and judicial branches to justify the exclusion of U.S. citizens without any due process of law. Did anyone in the Jackson chamber even see this problem? I realize this sort of line has some rhetorical force, but Justice Jackson whiffs badly.
