WASHINGTON, DC – OCTOBER 07: L-R: Associate Justice Clarence Thomas, Associate Justice Samuel Alito, and Associate Justice Neil Gorsuch, pose for their official portrait at the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, DC. (Alex Wong/Getty Images)
As seven of the nine Supreme Court justices banded together to hand President Donald Trump another defeat in his ongoing effort to use an 18th-century wartime law to justify his rapid mass deportations of Venezuelan nationals, Justice Samuel Alito scolded his colleagues for their decision to hear the case at all.
As Law&Crime reported, the justices handed down a 7-2 ruling on Friday blocking the federal government from summarily deporting the plaintiffs, a group of men currently being detained in the Northern U.S. District of Texas whom the Trump administration has accused of being members of the Tren de Aragua gang.
“[N]otice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster,” the justices wrote in the per curiam order, which was not attributed to a specific author. In its ruling, the court effectively extended the temporary injunction that the Supreme Court issued covering AEA removals in the Northern District of Texas on April 19, 2025.
Alito, along with Justice Clarence Thomas, disagreed with his colleagues’ conclusion, and took them to task in a 14-page dissent.
“I cannot join the decision of the Court,” he began. He followed with offering three justifications: that the Supreme Court “lacked jurisdiction,” that the plaintiffs didn’t show that an injunction was warranted, and that the decision to hear the case before any decision had been made on the merits by lower courts is “unwarranted.”
Alito — who also dissented from the Supreme Court’s April 19 directive — similarly diverged from his colleagues here. He disputed the timeline of events that the Supreme Court seemed to accept, starting with the actions of U.S. District Judge James Hendrix, a Trump appointee who denied class action certification to the petitioners after determining that they were too “distinct” and “diverse” to make up a coherent class.
“The Court asserts that the District Court failed to act ‘for 14 hours and 28 minutes,’ but that is misleading,” Alito wrote. “Here is what actually happened.”
Per Alito, the actual order of events was as follows:
On the evening of April 17, lawyers for A.A.R.P. and W.M.M. made a phone call in which they demanded “to talk to the Judge immediately … and have the Judge issue an order.” As the District Court has since correctly noted, judges are generally not permitted to consider such ex parte communications So the judge issued an electronic order admonishing the attorneys and stating that “[t]o the extent either party seeks emergency relief, it may file a motion to do so. If an emergency motion is filed, the opposing party shall have 24 hours to file a response.”
Thus, when the attorneys for A.A.R.P. and W.M.M. filed their renewed motion for a TRO at 12:34 a.m. on April 18, they were fully aware that the District Court intended to give the Government 24 hours to file a response. But in that motion, the attorneys said nothing about a plan to appeal if the District Court elected to wait for that response.
It was not until their 12:48 p.m. emergency motion for an immediate status conference that the attorneys suddenly informed the court that they would file an appeal if the District Court did not act within 42 minutes, i.e., by 1:30 p.m. The attorneys then filed their appeal at 3:02 p.m., just 133 minutes after they put the District Court on notice that they would seek appellate relief.
These actions by the plaintiffs’ attorneys, Alito said, were highly unusual.
“Whether or not the actions taken by applicants’ attorneys are thought to be justified under the circumstances, delivering such an ultimatum to a district court judge (‘Act on my motion on a complex matter within 42 or 133 minutes or I’ll file an appeal and divest you of jurisdiction’) represented a very stark departure from what is usually regarded as acceptable practice,” he wrote.
Rather than being co-opted by the Supreme Court, Alito said, Hendrix deserved praise.
“Faced with applicants’ extraordinary demand, the District Court proceeded in an entirely reasonable manner,” Alito wrote. The justice praised Hendrix, who described himself as “working with utmost diligence to resolve [the] important and complicated issues [presented by the motion] as quickly as possible.” Alito also noted that Hendrix was “was prepared to issue an order” as soon as possible after the government filed its response, if not sooner.
“We should commend this careful approach, not criticize it,” Alito wrote.
The justice also chastised his colleagues for relying on “weak” factual support the plaintiffs provided to Hendrix, scolding them for “conflat[ing] the information that was in the record on April 18 with the new information that was presented to this Court several days later.”
That April 18 record, Alito wrote, “included no concrete evidence that any removals were so imminent that a ruling had to be made immediately.” To Alito, the plaintiffs’ “six sworn declarations and a photograph that the applicants asserted was an image of a notice of removal” did not amount to “extreme urgency” that justified going beyond Hendrix and seeking relief from higher courts.
Moreover, Alito said, the DOJ had told Hendrix that it didn’t have plans to deport the petitioners.
“The Government ‘unequivocally’ told the District Court that it did not ‘presently expect to remove A.A.R.P. or W.M.M. under the [AEA] until after the pending habeas petition is resolved,’ and that it would ‘update’ the District Court if that changed,” Alito wrote in a footnote.
The stalwart conservative said that the Supreme Court should not have taken “the unusual step of granting certiorari before judgment,” and it was wrong to vacate the dismissal of the plaintiffs’ appeal and remand the case to the 5th U.S. Circuit Court of Appeals.
He then said that his colleagues’ conclusion left him somewhat in the dark.
“From the Court’s order, it is not entirely clear whether the Court has silently decided issues that go beyond the question of interim relief. (I certainly hope that it has not.) But if it has done so, today’s order is doubly extraordinary,” the justice wrote. “Granting certiorari before a court of appeals has entered a judgment is a sharp departure from usual practice, but here neither the Court of Appeals nor the District Court has decided any merits questions.”
Alito closed his dissent with a warning that the Supreme Court may have inappropriately expanded its own reach.
“Even on the Court’s reading of what happened below, all that the District Court and the Court of Appeals decided was that the applicants were not entitled to temporary injunctive relief,” he wrote. “If the Court has gone beyond that question, it has blazed a new trail. It has plucked a case from a district court and decided important issues in the first instance. To my eyes, that looks far too much like an expansion of our original jurisdiction.”
Jerry Lambe and Colin Kalmbacher contributed to this report.
