In The Middle of the Night on Easter Weekend, the Recalcitrant, Loathe-To-Get-Involved SCOTUS Goes Rogue – Alito and Thomas Forcefully Dissent

“John Roberts is ill equipped to keep the Court away from an actual constitutional crisis. At this point, he is squirming in a pit of quick sand. The more he flails his arms, the quicker he will sink. Anyone who reaches out to the Chief will descend just the same.” John Blackman in Reason Magazine.

Supreme Court Blocks New Deportations of Venezuelans in Texas Under Alien Enemies Act

ICYMI 🧵on SCOTUS's order in application re Alien Enemies Act case. https://t.co/R88JOLw8Mp

— Margot Cleveland (@ProfMJCleveland) April 19, 2025

Cleveland: “SCOTUS literally jumped in middle of night to issue stay to protect illegal aliens WHO WERE NOT EVEN PLAINTIFFS but ignored clear constitutional violations of U.S. citizens during COVID. Don’t tell me this is about civil liberties.”

“Where were the SCOTUS emergency orders during the COVID tyranny that was rampant all over this country? It doesn’t seem like they gave 2 cents about OUR rights/freedoms that were being stripped away daily.” (Keven Crackel)

District court judge in the case that ACLU double-leap-frogged to SCOTUS entered an order detailing the timing of everything. This order makes even more striking SCOTUS decision to toss “norms” to the wayside. Ironically, Plaintiffs aren’t getting any action by district court now b/c by seeking 5th Cir.’s involvement district court canceled deadlines, but then 5th Cir. denied as premature. Of course, ACLU doesn’t care because it got SCOTUS to issue stay even though class not certified.

“What in the world is going on here? Does anyone think the Justices gave this issue more than a moment’s thought in the middle of the night on Good Friday? The Supreme Court has clearly abandoned any pretense of procedural regularity at the same time they are denying the Trump Administration the presumption of substantive regularity. If Chief Justice Roberts doesn’t want his rulings to be ignored, then this decision is a terrible way to proceed. Justice Barrett, a former federal courts professor, should, in the words of Justice Scalia, hide her head in a bag. There is more law in Obergefell than in this fly-by-night operation.” (more…)

“If SCOTUS doesn’t clean up its own mess then the executive branch is effectively paralyzed from deporting illegal aliens while a future Admin could just reopen or relax security on the US Border or fly in thousands of illegals upon a whim. The executive branch has a duty to protect the US and should be allowed to deport illegal aliens.” (X)

Justice Alito said the court had behaved “hastily and prematurely” without following legal precedents.

“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,” he wrote.

“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.

Both the Executive and the Judiciary have an obligation to follow the law.”

Read Alito’s dissent here: 24a1007_22p3

Justice Alito’s Dissent by P G on Scribd

Justice Clarence Thomas also dissented.

Alito understands that allowing the ACLU to

-Leap frog lower courts to get a SCOTUS injunction

-Based on wrong application of existing law on class certification

-Without even hearing from the opposing party

-In the middle of the night

Is how banana republic courts work pic.twitter.com/m0Kq9TEZJB

— Phil Holloway ✈️ (@PhilHollowayEsq) April 20, 2025

11/11 SCOTUS has created another mess because it is clear it shouldn't have entered its order because: a) no class certified; b) no class can be certified; and c) "norms" would be to allow lower court to rule. BUT if SCOTUS vacates order, Trump will likely immediately deport.

— Margot Cleveland (@ProfMJCleveland) April 19, 2025

Margot Cleveland on President Trump’s response:

Trump files response in Alien Enemies Act case. I didn’t think Sauer would wait until tomorrow or Monday.

Read the whole thing here: 20250419170105032_A.A.R.P. Opp. FINAL

Trump Admin. hits numerous deficiencies: a) ACLU filed application on behalf of clients “does not represent,” using “class action” procedure that is not available for habeas claims, and using individuals who deny membership in tDa–which is not others in supposed class.

Interestingly, Trump says SCOTUS order limits removal of tDa members on other other grounds & notes that those held in Texas are removable on other grounds. It is unclear if orders of removal have already been obtain or Trump just means they can get those.

I hadn’t read SCOTUS as limiting removal on other basis but it technically is that broad because the proposed class says
“were, are, or will be subject to” proclamation & all tDa members are “subject to proclamation,” but could still be removed a different way.

And SCOTUS order says Trump can’t remove any member of putative (wanna-be) class and doesn’t say don’t remove for that reason!

As I noted earlier in another thread, the district court said it was prepared to enter a decision on Plaintiff’s request for a class TRO when ACLU filed appeals. Will SCOTUS step off and allow district court to enter its decision?

This was the fundamental flaw with SCOTUS entering it’s order:

And again, point I made earlier:

SCOTUS has created another mess because it is clear it shouldn’t have entered its order because: a) no class certified; b) no class can be certified; and c) “norms” would be to allow lower court to rule. BUT if SCOTUS vacates order, Trump will likely immediately deport.