Justice Samuel Alito's dissent in the Supreme Court case of A.A.R.P. v. Trump has me thinking about Kevin Bacon's appearance in the film "Animal House." The scene, which comes near the end of the movie, features Bacon, as an ROTC student, assuring a mob that "all is well" and to "remain calm." Alito's dissent is eerily similar.
The case concerns a challenge on behalf of 50 Venezuelan migrants who were notified earlier this month that they were facing deportation to El Salvador as soon as the evening of April 18. Working against the clock, lawyers for the migrants filed an emergency action in Federal District Court in Abilene, Texas seeking to block the deportation long enough to allow for a proper legal challenge. When the assigned judge failed to act, the lawyers took the case to the United States Court of Appeals for the Fifth Appellate District. The lawyers also filed an emergency petition in the United States Supreme Court asking SCOTUS to step in and pause the process, since many of the Venezuelan men had "already been loaded on to busses, presumably headed to the airport." Shortly after midnight, the Supreme Court granted the temporary order.
It's important to note the limited relief SCOTUS granted here. It is merely a directive to halt the process of deporting (likely permanently) a group of migrants to El Salvador until the courts can determine the propriety of the government's actions. There is precisely zero harm to the United States as a result of this ruling. Had the Court not intervened, however, 50 potentially innocent people would have been shuttled off to a foreign land, with little hope of returning.
But the Court's humanitarian gesture offended the sensibilities of Justices Thomas and Alito. Justice Alito filed a dissent on behalf of himself and Justice Thomas. In it, he complained about the procedural issues with the process. He questioned whether the Supreme Court had jurisdiction because it was not clear to Justice Alito that the District Court had actually denied the request to stop the proceedings. In his view, the plaintiffs' lawyers took the matter to the Fifth Circuit before the District Judge had the opportunity to rule.
Justice Alito was also miffed because the Supreme Court refused to wait for the Circuit Court of Appeals to issue a ruling. He noted that "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, April 18, or today, April 19." In Justice Alito's view, SCOTUS should have taken the lawyer's word for it.
The dissent either willfully or ignorantly misses the point, which is, a group of migrants were facing immediate and permanent deportation if SCOTUS failed to act. If the Court committed a jurisdictional error in taking the case, it can address that in the regular appellate process.
In terms of the Supreme Court taking the case while it was pending the Court of Appeals, Justice Alito undermines his argument by citing to Supreme Court Rule 23.3, which states: "[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." Perhaps Justice Alito and I view the world differently, but the prospect of permanent deportation seems to me like "extraordinary circumstances."
Despite Justice Alito's homage to Kevin Bacon, all is not well, and this is no time to remain calm. Kudos to the Supreme Court, but this should have been a unanimous decision.
