Alito’s Dissent: Procedural Grievances or Political Strategy?
Justice Alito’s five-page dissent, published late Saturday night, reads less like a legal analysis and more like a procedural rebuke—faulting the ACLU for allegedly bypassing lower courts, misrepresenting the immediacy of the threat, and asking the Court to grant class-wide relief without proper certification.
But a close reading of the dissent reveals several flaws.
For one, Alito claims the Court lacked jurisdiction because the ACLU’s appeal was not properly before the Fifth Circuit. Yet federal law is clear: the Supreme Court’s appellate jurisdiction kicks in as soon as a case is docketed in a circuit court—whether or not that court has ruled on the matter. Alito himself joined majority opinions in similar cases that upheld this very interpretation.
He also takes issue with the ACLU seeking emergency relief just over two hours after filing with the district court. But there is no statutory requirement to wait a specific length of time, especially when buses are literally en route to airports. That’s not legal overreach—it’s a matter of urgency.
Alito further complains that the government had no chance to respond before the Court acted. But emergency rulings often proceed without a formal response, especially when constitutional rights are at risk. Alito himself has signed off on such relief in other contexts, making his objection appear less about principle and more about politics.
Perhaps most disconcerting is Alito’s claim that the government had not planned any removals on April 18 or 19—relying on a Department of Justice statement that carefully “reserved the right” to act on Saturday. In fact, NBC News later confirmed that detainees were indeed being transported late Friday, only to be turned around when news of the Supreme Court’s intervention broke. Whether or not a plane was waiting on the tarmac, the government was clearly preparing to act.
Shadow Docket or Substantive Shift?
This episode adds to the growing debate over the Supreme Court’s use of the “shadow docket”—a term coined to describe fast-tracked decisions issued without full transparency. Critics argue that this trend undermines judicial credibility and allows ideology to creep into rulings that should be driven by facts and legal precedent.
To that point, it’s worth noting that the Supreme Court has increasingly sided with conservative applicants in shadow docket cases, often granting stays and emergency relief to states or federal agencies defending Trump-era policies. By contrast, emergency relief for civil liberties groups has been far less common—making last weekend’s order a potential turning point.
Legal scholars suggest that the Court’s decision to intervene in A.A.R.P.—and not in prior, arguably stronger cases—could signal mounting frustration with the government’s attempts to outmaneuver the judiciary by relocating detainees to districts with more favorable judges or enforcement environments.
As one expert put it, “The Supreme Court may finally be tiring of the administration’s legal Calvinball.”
What Comes Next
The Court has scheduled oral arguments for May 15 to consider emergency appeals in related birthright citizenship cases. At the same time, other Trump-era immigration challenges, including Wilcox (involving the president’s authority to fire members of the National Labor Relations Board), remain pending.
But with just weeks left in the April sitting, the justices are under pressure to deliver clarity in a chaotic term dominated by emergency motions, divisive dissents, and an ever-looming presidential election.
For now, A.A.R.P. stands as a crucial reminder: even at 1:00 a.m., the rule of law—and the right to due process—must hold.
And perhaps, just perhaps, the Supreme Court still has some fight left in it.
