THE dEEP sTATE VS THE IDEOLOGUES:
- The Supreme Court’s (Alien Enemies Act) Patience is Wearing Thin: A very quick breakdown of Friday afternoon’s quietly significant ruling slapping down the lower courts in the Northern District of Texas Alien Enemies Act litigation—and what it means going forward. (Steve Vladeck, May 16, 2025, “One First)
Is It Me, Or is the Majority Opinion … Unusually Pointed? It’s not you. There are at different passages in which the majority openly seems to be expressing … frustration … with the government; the lower courts; and Justice Alito (who wrote a dissenting opinion that was joined by Justice Thomas), respectively.
The Government: On page 2, the majority goes into detail about the slippery language the government used on April 18 re: whether any removals under the AEA were imminent, then notes that “evidence now in the record” appears to be inconsistent with the government’s representations, and concludes by underscoring the ongoing litigation in Abrego Garcia—and how difficult it has proven to get detainees back once they have been removed (indeed, Abrego Garcia is cited again on page 4). This is quite a subtle but significant dig at the government for the shell games it’s been playing with AEA detainees, especially for a majority opinion
The Lower Courts: The Court takes a rather healthy shot at the Fifth Circuit for not taking the gravity of the plaintiffs’ claims (and the district court’s delay in ruling on them) seriously enough—correcting the record in the process. As it writes, “Here the District Court’s inaction—not for 42 minutes but for 14 hours and 28 minutes—had the practical effect of refusing an injunction to detainees facing an imminent threat of severe, irreparable harm.” Indeed, that text inside the em-dashes is the majority correcting an erroneous portrayal of the timeline by both the lower courts and Justice Alito back in April. More generally, the opinion is all-but dripping with exasperation that the lower courts didn’t think these cases were serious enough, or the plaintiffs’ allegations of imminent harm plausible enough, to justify moving faster.
Justice Alito: Finally, in a portion of the opinion devoted entirely to responding to Justice Alito’s dissent, the majority begins by “reject[ing] the dissent’s characterization of the events that transpired on April 18.” That may seem tame by the standards of contemporary public discourse; it’s a pretty sharp elbow in a majority opinion by the Supreme Court. And, again, it appears to reflect real concern on the part of the justices in the majority that the dissenting justices seem so un-troubled by how events appeared to be transpiring back in April.
Why Did Justice Alito Dissent? The dissent effectively starts from the proposition that “the District Court had no good reason to think that either A. A. R. P. or W. M. M. was in imminent danger of removal” back on April 18, and reasons backwards from there. It argues that the Court itself lacks jurisdiction to grant the relief the plaintiffs sought (as I explained in response to Alito’s dissent from the April 19 order, this is clearly incorrect). It then argues that in any event, plaintiffs were unlikely to prevail on the merits because (1) class certification isn’t available in a habeas petition; and (2) it isn’t appropriate in this case. (Interestingly, Alito never explains why relief wouldn’t have been appropriate to at least the two named plaintiffs.) There’s not much new here beyond the stuff Alito got wrong back in April—with one exception: Alito goes out of his way to criticize the majority’s conclusion that federal courts can provisionally certify classes for the purposes of preliminary relief even without reaching a tentative judgment about whether a class will ultimately be certified (see, especially, the second paragraph of footnote 3 on page 8 of his dissent). Among other things, his unmissable frustration on this point has the (perhaps unintended) effect of making clear just how deliberate a holding this really is—and will provide powerful support in other cases when litigants point to the majority opinion as reasserting the availability of temporary relief to putative classes without having to decide whether formal class certification is likely.
Thomas and Alito are ideologues, not conservatives.