The Volokh Conspiracy
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Justice Alito Dissents: "Both the Executive and the Judiciary have an obligation to follow the law."
Justice Alito also questions whether the Court even had jurisdiction to act.
Saturday evening, I published three posts on A.A.R.P. v. Trump. Around midnight eastern time, Justice Alito issued his dissent, which was joined only by Justice Thomas. The dissent begins: "Shortly after midnight yesterday, the Court hastily and prematurely granted unprecedented emergency relief." He is correct.
Justice Alito lists seven bullets which demonstrates why this order was problematic. The first bullet argues that it is unclear the Court had jurisdiction:
It is not clear that the Court had jurisdiction. The All Writs Act does not provide an independent grant of jurisdiction. See 28 U. S. C. §1651(a) (permitting writs "necessary or appropriate in aid of " a court's jurisdiction); Clinton v. Goldsmith, 526 U. S. 529, 534–535 (1999) ("the express terms" of the All Writs Act "confine the power of [a court] to issuing process' in aid of ' its existing statutory jurisdiction; the Act does not enlarge that jurisdiction" (quoting §1651(a)). Therefore, this Court had jurisdiction only if the Court of Appeals had jurisdiction of the applicants' appeal, see §1254 (granting this Court jurisdiction to review "[c]ases in the courts of appeals"), and the Court of Appeals had jurisdiction only if the supposed order that the applicants appealed amounted to the denial of a preliminary injunction. See §1292(a)(1).
I've received a number of emails about my Marbury post. I'll offer a few points in response. The All Writs Act permits the Court to take actions in aid of its jurisdiction, and even in aid of its future jurisdiction. But, as Justice Alito notes, the All Writs Act does not, by itself, grant the Court new statutory jurisdiction. The Court still must have statutory jurisdiction from some other basis. The usual basis is where there is a judgment that is appealable under Section 1292. In some cases, the Court have construed a TRO as, in effect, a preliminary injunction, thus permitting the Court to intervene. But in A.A.R.P., the District Court did not rule at all, one way or the other. There is a doctrine where the "constructive" denial of a TRO is considered a ruling. But as Judge Ramirez pointed out, the district court was given about 42 minutes to rule. There is no sense this was a "constructive" denial.
Perhaps the ACLU might argue that the question of whether there is a "constructive" denial is a merits question. But I think it has to be jurisdictional, and that is what the Fifth Circuit concluded. If the Supreme Court wanted to issue any relief, it would have to satisfy itself there was a constructive denial, which would afford it some sort of statutory jurisdiction. I doubt any such finding was made. The Court fell for the ACLU's petition hook, line, and sinker.
It's not at all clear to me that the Supreme Court had any appellate statutory jurisdiction in this case. And if it was not exercising an appellate statutory jurisdiction, then how did the Court issue an order to the "government" (however defined)? If in fact the All Writs Act permits the Supreme Court to assume statutory jurisdiction over a future appeal, and issue an injunction, when in fact the District Court was never even given a chance to rule, then the All Writs Act may have some Marbury problems.
Has the Supreme Court ever issued an injunction or mandamus in a case where there is no ruling from any lower court? (I am not talking about cases of constructive denial.) I would wager the answer is no, but maybe someone knows of these cases. I am happy to post an update.
Justice Alito's second and third bullets focus on whether the ACLU complied with the Federal Rules of Appellate Procedure Rule 8(a)(1)(A) and Supreme Court Rule 23.3 about emergency relief. They didn't. These sorts of procedural rules only seem to matter when the Court wants to deny relief.
Alito does include a piece of information that hasn't been made public:
When this Court rushed to enter its order, the Court of Appeals was considering the issue of emergency relief, and we were informed that a decision would be forthcoming.
Based on my calculations, the Fifth Circuit ruled within a few minutes of the Supreme Court. The Fifth Circuit's order was dated April 18. It was issued around midnight central time, which would be around 1:00 a.m. ET. The Supreme Court's order was issued around 1:00 a.m. ET. It isn't clear which happened first. I asked the Clerk of the Fifth Circuit for clarification, which should be a matter of public record. But now we learn that Chief Justice Roberts knew the Fifth Circuit was going to rule, but just didn't give a damn to wait. Maybe he thought it was easier to try to rule first, and avoid having to make any ruling on anything?
Justice Alito's fourth bullet explains the problems with granting ex parte relief, where there are only briefs from one side.
Justice Alito's fifth bullet attacks another ruling issued late at night: South Bay:
The papers before us, while alleging that the applicants were in imminent danger of removal, provided little concrete support for that allegation. Members of this Court have repeatedly insisted that an All Writs Act injunction pending appeal may only be granted when, among other things, "the legal rights at issue are indisputably clear and, even then, sparingly and only in the most critical and exigent circumstances." South Bay United Pentecostal Church v. Newsom, 590 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring in denial of application for injunctive relief ) (slip op., at 2) (internal quotation marks omitted) (quoting S. Shapiro, K. Geller, T. Bishop, E.Hartnett, D. Himmelfarb, Supreme Court Practice§17.4, p. 17–9 (11th ed. 2019));
In my earlier post, I speculated:
Can you imagine if the Supreme Court had bypassed all lower courts, and enjoined an emergency COVID regulation twenty-four hours after a district court TRO was filed?
Does everyone remember the South Bay "super precedent"? During the pandemic, there were actual imminent injuries by American citizens who sought to pray on holidays. But Chief Justice Roberts took his time, and ruled against people of faith for months at a time. It wasn't until Justice Barrett's confirmation that this tide turned. (I am convinced she regrets that early vote.) By contrast, the Court issues unprecedented orders to ensure that alleged gang members, who are in this country illegally, cannot be deported. I'm glad that the Chief has his priorities straight. This is what Trump would call an 80/20 issue.
Justice Alito's sixth bullet references a hearing before Judge Boasberg on a Saturday.
Although this Court did not hear directly from the Government regarding any planned deportations under the Alien Enemies Act in this matter, an attorney representing the Government in a different matter, J. G. G. v. Trump, No. 1:25–cv–766 (DC), informed the District Court in that case during a hearing yesterday evening that no such deportations were then planned to occur either yesterday, April18, or today, April 19.
Judges in the Beltway apparently are always on call to hold emergency hearings whenever the ACLU asks for one. It is unclear why Judge Boasberg is doing anything with these cases. The Supreme Court found he lacks venue and the D.C. Circuit stayed his special prosecutor frolick. Still, even if Boasberg denied relief, he is still demanding concessions from government lawyers.
The seventh bullet points out an obvious argument: the Court has never held that habeas can be used to certify a class, and the District Court never certified a class. The Supreme Court cannot exercise Rule 23 powers on the fly.
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.
Justice Alito issues a challenge to his fellow members: I couldn't join this opinion, so why did you?
In sum, literally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order. I refused to join the Court's order because we had no good reason to think that, under the circumstances, issuing an order at midnight was necessary or appropriate.
The conclusion is a shot at J. Harvie Wilkinson:
Both the Executive and the Judiciary have an obligation to follow the law. The Executive must proceed under the terms of our order in Trump v. J. G. G., 604 U. S. ___ (2025) (per curiam), and this Court should follow established procedures.
Amen. The obligation cannot only be on Trump; the Court must obey the law as well. The more Chief Justice Roberts issues decisions like this, the more his precious "legitimacy" withers. I made a similar point here:
In a stress test, the Justices of the Supreme Court failed. In the same breath that Judges like J. Harvie Wilkinson wax poetic about the executive branch behaving lawlessly, the highest court in the land does no better.
Samuel Alito and Clarence Thomas are national treasures.
Justices Gorsuch and Kavanaugh did not join this dissent. I see a redux of the tax return cases, where the clearly agreed with the dissenters but could not be seen ruling for Trump. As for Justice Barrett, I think we can finally bury the "process formalism" defense. There are so many procedural reasons why she should have dissented here. But she did not, without any explanation. We can't read an opinion that does not exist; much like the Supreme Court cannot review a decision that does not exist.
