Justice Alito's after-the-fact opinion dissenting from the Court's early-Saturday-morning Alien Enemy Act ruling rests on a revealing array of misrepresentations, misstatements, and non-sequiturs.
I know I just keep offering thanks in the comments, but here I go again. Thanks especially for the precision in addressing the dissent's points. I know that takes a lot of time, effort, thought, etc., but I think it's quite important in the current scenario.
I concur. 😁 I'm not an attorney, just someone who likes to geek out on understanding the nitty gritty of the Court's arguments and decisions. I appreciate Vladeck methodically letting the air out of all of Alito's tires. That big old windbag of pompous condescension tries to ride around on nothing but hot air all too often.
"the DOJ lawyer did not say what Alito said he said."
Are there no consequences when a justice bases their opinion on something that is obviously wrong, that is blatantly false? Why don't more folks ridicule this BS? This was such an absurd misreading of what was said it was more like failing at getting one of those grade school gotcha joke. It was so bad that it makes you wonder if someone with such poor reading skills should be allowed at a carpenters bench much less on any judges bench..
I was going to ask this same question. When it's obvious now, that our Judicial Branch lies, an average of 20 lies per day from the Executive Banch by the POTUS alone, and a legislative Branch with the majority of Republicans that have lied, the elections being a major crime. IMHO, coupled with the amount of past lies per administration, that have caused millions to die, and cost trillions of dollars in two unjustified wars, it's actually a miracle that we've ever been a "beacon of hope" to any Country, let alone garner any respect from our own. My proposal for a fix? Schools will be used for reading, writing, and math for half the school day and history for the other half of the day. For all 12 years. And then, after the first 12 years, we may have a portion of the populace that understands history.
I've a saying I repeat often. The only progress we humans have actually accomplished since our beginnings is our ability to live longer lives all else is simply air-conditioning.
"There are no consequences" is the critically important part of your frustrated question: "why don't more folks ridicule this BS?." How many people should ridicule these ridiculous people, and what would be the result? Setting aside that these observations are recorded in retrospect, since you very rightly point out that "there are no [available] consequences," it's just spitting into the wind to complain. Look at all the criticism of Thomas, who tells us to go fuck ourselves, and moves on to his next misadventure. Nothing can be done. It's highly unlikely Roberts would attempt to do anything, but he has no power when justices invent their arguments, either. "Sam, it would be cleaner and more powerful if you didn't misstate things." "Go fuck yourself, John." "Sorry to bother you, Sam. It was just a diplomatic suggestion." "Yeah, well go fuck yourself anyway."
You think Alito had a problem with Stephen Miller stating in the oval that SCOTUS ruled 9-0 in favor of teh Administration? (Methinks thou doth protest too little.)
I think it would help us non-lawyers to have a Thursday morning edition sometime covering what is and is not established -- by precedent or in statutes -- about what constitutes adequate notice and adequate opportunity to bring a habeas challenge. Thank you, Prof. Vladeck, for your outstanding service to the public.
I am generally determined against arguing for bad faith in the justices (not that I will argue against everyone who will do so; I just don't want to). But man, trying to argue that intervening for the people is invalid because of speed and lack of hearing while giving the government multiply admin stays with the same lack of hearing from the other side does not suggest good faith. Given the lack of effect a two-person dissent has, I don't know what the bad faith explanation would be (if they were outright paid to rule for Trump that wouldn't make a difference here; they could just note that they dissent and move on).
It isn't good, in any case. Thanks for walking throught it. I needed a primer to get me through the inevitable GOP-sympathetic arguments that the dissent is a paeon to judicial wisdom and accuracy.
Thanks again, Prof. Vladeck for your illuminating, meticulous analysis of Alito's dissent.
Regarding Bullet 6, I will not give Alito any benefit of the doubt and will just say flat out he was lying about what DOJ lawyer Ensign told Judge Boasberg in the J.G.G. case. His lie was easy to spot and debunk with a quick internet search even for non-lawyers/non-experts. I suspect Alito doesn't care at all about what people like me or even law professors think about him, but what about his colleagues on the court and lower court judges? Surely the other Justices know everything that Prof. Vladeck mentioned (as do Alito's clerks). How can any of them respect Alito when he says things they know to be incorrect and contradicted by his own previous rulings and opinions? What is Judge Boasberg, who is already confronting DOJ lawyers who are either uninformed, prevaricating or even lying to him in court, to think when Supreme Court Justices issue dissents such as Alito's? Already he can't trust the DOJ, now he has to worry about the veracity of SCOTUS justices?
Alito's blatant lie, claiming that Ensign said no flights were planned for Saturday when Ensign clearly said DHS "reserved the right" to resume flights on Saturday, reminds me of Justice Gorsuch's opinion in the Kennedy v. Bremerton School District case lying so blatantly that Kennedy's prayers were private that Justice Sotomayor included a photo in her dissent showing a praying Kennedy in the middle of the field surrounded by players and fans. How can these justices expect the American people to trust their rulings when they tell such easily detected lies?
Thank you, I seriously was beginning to wonder if I was the last person standing who believes we'd trashed the word lie to the dustpan of non PC words. trump's world is sucking in far too many of our neighbors. And, their children? Time will tell.
I, too, am still appalled by the Court's "alternative facts" in the 'Coach Kennedy' case. Alito's quip about “dubious factual support” was so apropos in that case.
Bulletpoint 6 is outcome dispositive. Alito either is flat out lying ( which seems hard to credit because while his arrogance is unremitting he is surely aware that there are some very able commentators and some very interested and experienced people looking closely at what he says and does) or his has decided that the Due Process Rights the Court unanimously insisted upon in JGG or are a mere formality that should be observed only when the Trump Administration feels like it. Either way, this is a travesty of the Constitution and the Rule of Law.
When I read the Alito/Thomas opinion on Sunday, I spotted a few red flags, but I wasn't even close to SV's masterful critique. I am baffled and disheartened by the apparent errors and, like you, appalled by the misstatements.
Given his concern about the public's trust and confidence in the Court (and the courts generally), I imagine C. J. Roberts is even more perturbed about the Alito/Thomas opinion than Prof Vladeck!
Mr Vladeck, I very much appreciate your wonderful perspective and expertise, even though I'm a medical doctor, and most of it is not familiar enough to me to be "in my wheelhouse." But I mostly don't fail to understand your points.
I enjoyed Mark Joseph Stern's characterization of Alito's dissent as "characteristically whiny and aggrieved", but I appreciate your detailed, bullet-by-bullet analysis showing the serious flaws in Alito's contrived 'reasoning.' I agree that bullet #6 was the most worrisome - the juxtaposition of seeing the video (of the ICE motorcade passing the airport's exit and looping back to the Bluebonnet facility) against Alito's misrepresentation about no deportations being planned for Friday/Saturday was as visceral a proof the majority's order blocking new deportations was absolutely appropriate and essential. Thanks again, Prof. Vladeck, for explaining why it was also legally sound.
I can't tell you how refreshing it is to read an article that is both extremely informative and unbiased as is possible. The amount of over dramatic "news" circulating is enough to push any sane individual into a coma or simply not caring about the truth anymore, sadly. And unfortunately, we have enough of the later already.
Why did Alito file at 11pm the night before Easter? The dissent had no practical effect and could have been filed at any time. Did Alito know or fear that Trump was going to send those people to prison in defiance of the Court on Easter? His last sentence scolds his colleagues for telling everyone that they don't trust Trump, but it also reads as a warning to Trump that he won't even have Alito and Thomas if he does not provide due process before deportation.
Thank you for this thorough ripping apart of Alito's dissent. Some MAGAT pundit or politician started calling for ignoring the court for flouting the Constitution. My response is: you must be referring to the dissent penned by the man who overturned donkey's years of constitutional law by citing the words of a witch hunter from years before the US was in existence to provide a religious reason for his ruling. THAT Constitutional Scholar/Justice?
Alito’s sophistry is intellectually inferior to that of the conservative master of the form, Antonin Scalia. Thank you, Mr. Vladek, for explaining his pseudo legal reasoning so clearly for us non lawyers!
If he felt this way, I’m wondering why Alito didn’t just deny the application when it first came to him. As far as I understand, he’s not obligated to refer an emergency stay application to the whole court.
There's a pretty strong norm that justices are supposed to refer applications to the full Court if there's a reasonable chance any two justices might disagree. Here, that was clearly satisfied regardless of what Justice Alito's own views were.
All applications or just emergency applications? In either case, are all applications *viewable* to all justices (and/or their clerks) as a safeguard against a Justice making a misjudgement (about whether "there's a reasonable chance any two justices might disagree")?
I've always been grateful for your commentary, Steve. Now it's an absolute necessity. Thank you so much for all you do.
I know I just keep offering thanks in the comments, but here I go again. Thanks especially for the precision in addressing the dissent's points. I know that takes a lot of time, effort, thought, etc., but I think it's quite important in the current scenario.
I concur. 😁 I'm not an attorney, just someone who likes to geek out on understanding the nitty gritty of the Court's arguments and decisions. I appreciate Vladeck methodically letting the air out of all of Alito's tires. That big old windbag of pompous condescension tries to ride around on nothing but hot air all too often.
"the DOJ lawyer did not say what Alito said he said."
Are there no consequences when a justice bases their opinion on something that is obviously wrong, that is blatantly false? Why don't more folks ridicule this BS? This was such an absurd misreading of what was said it was more like failing at getting one of those grade school gotcha joke. It was so bad that it makes you wonder if someone with such poor reading skills should be allowed at a carpenters bench much less on any judges bench..
I was going to ask this same question. When it's obvious now, that our Judicial Branch lies, an average of 20 lies per day from the Executive Banch by the POTUS alone, and a legislative Branch with the majority of Republicans that have lied, the elections being a major crime. IMHO, coupled with the amount of past lies per administration, that have caused millions to die, and cost trillions of dollars in two unjustified wars, it's actually a miracle that we've ever been a "beacon of hope" to any Country, let alone garner any respect from our own. My proposal for a fix? Schools will be used for reading, writing, and math for half the school day and history for the other half of the day. For all 12 years. And then, after the first 12 years, we may have a portion of the populace that understands history.
I've a saying I repeat often. The only progress we humans have actually accomplished since our beginnings is our ability to live longer lives all else is simply air-conditioning.
Oops, off by a little:
"There's birth," he grumbled, "there's death, and in between there's maintenance. Tom Robbins, in "Fierce Invalids Home from Hot Climates"
There's birth and there's death, everything inbetween is just maintenance [Tom Robins in I forget which book]
"There are no consequences" is the critically important part of your frustrated question: "why don't more folks ridicule this BS?." How many people should ridicule these ridiculous people, and what would be the result? Setting aside that these observations are recorded in retrospect, since you very rightly point out that "there are no [available] consequences," it's just spitting into the wind to complain. Look at all the criticism of Thomas, who tells us to go fuck ourselves, and moves on to his next misadventure. Nothing can be done. It's highly unlikely Roberts would attempt to do anything, but he has no power when justices invent their arguments, either. "Sam, it would be cleaner and more powerful if you didn't misstate things." "Go fuck yourself, John." "Sorry to bother you, Sam. It was just a diplomatic suggestion." "Yeah, well go fuck yourself anyway."
I think you underestimate the power of ridicule, if enough of the right people would keep repeating the right kind of wit it could go a LONG way.
You think Alito had a problem with Stephen Miller stating in the oval that SCOTUS ruled 9-0 in favor of teh Administration? (Methinks thou doth protest too little.)
I think it would help us non-lawyers to have a Thursday morning edition sometime covering what is and is not established -- by precedent or in statutes -- about what constitutes adequate notice and adequate opportunity to bring a habeas challenge. Thank you, Prof. Vladeck, for your outstanding service to the public.
A+ explanation of the appellate navigational skills it took to give the Court an opportunity to step in.
I am generally determined against arguing for bad faith in the justices (not that I will argue against everyone who will do so; I just don't want to). But man, trying to argue that intervening for the people is invalid because of speed and lack of hearing while giving the government multiply admin stays with the same lack of hearing from the other side does not suggest good faith. Given the lack of effect a two-person dissent has, I don't know what the bad faith explanation would be (if they were outright paid to rule for Trump that wouldn't make a difference here; they could just note that they dissent and move on).
It isn't good, in any case. Thanks for walking throught it. I needed a primer to get me through the inevitable GOP-sympathetic arguments that the dissent is a paeon to judicial wisdom and accuracy.
Thanks again, Prof. Vladeck for your illuminating, meticulous analysis of Alito's dissent.
Regarding Bullet 6, I will not give Alito any benefit of the doubt and will just say flat out he was lying about what DOJ lawyer Ensign told Judge Boasberg in the J.G.G. case. His lie was easy to spot and debunk with a quick internet search even for non-lawyers/non-experts. I suspect Alito doesn't care at all about what people like me or even law professors think about him, but what about his colleagues on the court and lower court judges? Surely the other Justices know everything that Prof. Vladeck mentioned (as do Alito's clerks). How can any of them respect Alito when he says things they know to be incorrect and contradicted by his own previous rulings and opinions? What is Judge Boasberg, who is already confronting DOJ lawyers who are either uninformed, prevaricating or even lying to him in court, to think when Supreme Court Justices issue dissents such as Alito's? Already he can't trust the DOJ, now he has to worry about the veracity of SCOTUS justices?
Alito's blatant lie, claiming that Ensign said no flights were planned for Saturday when Ensign clearly said DHS "reserved the right" to resume flights on Saturday, reminds me of Justice Gorsuch's opinion in the Kennedy v. Bremerton School District case lying so blatantly that Kennedy's prayers were private that Justice Sotomayor included a photo in her dissent showing a praying Kennedy in the middle of the field surrounded by players and fans. How can these justices expect the American people to trust their rulings when they tell such easily detected lies?
Thank you, I seriously was beginning to wonder if I was the last person standing who believes we'd trashed the word lie to the dustpan of non PC words. trump's world is sucking in far too many of our neighbors. And, their children? Time will tell.
Teach Your Children Well.
I, too, am still appalled by the Court's "alternative facts" in the 'Coach Kennedy' case. Alito's quip about “dubious factual support” was so apropos in that case.
Bulletpoint 6 is outcome dispositive. Alito either is flat out lying ( which seems hard to credit because while his arrogance is unremitting he is surely aware that there are some very able commentators and some very interested and experienced people looking closely at what he says and does) or his has decided that the Due Process Rights the Court unanimously insisted upon in JGG or are a mere formality that should be observed only when the Trump Administration feels like it. Either way, this is a travesty of the Constitution and the Rule of Law.
When I read the Alito/Thomas opinion on Sunday, I spotted a few red flags, but I wasn't even close to SV's masterful critique. I am baffled and disheartened by the apparent errors and, like you, appalled by the misstatements.
Given his concern about the public's trust and confidence in the Court (and the courts generally), I imagine C. J. Roberts is even more perturbed about the Alito/Thomas opinion than Prof Vladeck!
Mr Vladeck, I very much appreciate your wonderful perspective and expertise, even though I'm a medical doctor, and most of it is not familiar enough to me to be "in my wheelhouse." But I mostly don't fail to understand your points.
I enjoyed Mark Joseph Stern's characterization of Alito's dissent as "characteristically whiny and aggrieved", but I appreciate your detailed, bullet-by-bullet analysis showing the serious flaws in Alito's contrived 'reasoning.' I agree that bullet #6 was the most worrisome - the juxtaposition of seeing the video (of the ICE motorcade passing the airport's exit and looping back to the Bluebonnet facility) against Alito's misrepresentation about no deportations being planned for Friday/Saturday was as visceral a proof the majority's order blocking new deportations was absolutely appropriate and essential. Thanks again, Prof. Vladeck, for explaining why it was also legally sound.
I can't tell you how refreshing it is to read an article that is both extremely informative and unbiased as is possible. The amount of over dramatic "news" circulating is enough to push any sane individual into a coma or simply not caring about the truth anymore, sadly. And unfortunately, we have enough of the later already.
Why did Alito file at 11pm the night before Easter? The dissent had no practical effect and could have been filed at any time. Did Alito know or fear that Trump was going to send those people to prison in defiance of the Court on Easter? His last sentence scolds his colleagues for telling everyone that they don't trust Trump, but it also reads as a warning to Trump that he won't even have Alito and Thomas if he does not provide due process before deportation.
Thank you for this thorough ripping apart of Alito's dissent. Some MAGAT pundit or politician started calling for ignoring the court for flouting the Constitution. My response is: you must be referring to the dissent penned by the man who overturned donkey's years of constitutional law by citing the words of a witch hunter from years before the US was in existence to provide a religious reason for his ruling. THAT Constitutional Scholar/Justice?
> These were two very small cracks in the Court’s glass ceiling. Hopefully, we’ll see bigger ones in our lifetimes.
*monkey's paw curls*
"Chief Justice Cannon, and may it please the court..."
Kinda makes one wonder about Alito's (and Thomas') agenda.
Oh, wait...
Alito’s sophistry is intellectually inferior to that of the conservative master of the form, Antonin Scalia. Thank you, Mr. Vladek, for explaining his pseudo legal reasoning so clearly for us non lawyers!
If he felt this way, I’m wondering why Alito didn’t just deny the application when it first came to him. As far as I understand, he’s not obligated to refer an emergency stay application to the whole court.
There's a pretty strong norm that justices are supposed to refer applications to the full Court if there's a reasonable chance any two justices might disagree. Here, that was clearly satisfied regardless of what Justice Alito's own views were.
Which applications to the Supreme Court can be rejected by a single justice? As a legal layman, I'm surprised that that's allowed at all.
All applications or just emergency applications? In either case, are all applications *viewable* to all justices (and/or their clerks) as a safeguard against a Justice making a misjudgement (about whether "there's a reasonable chance any two justices might disagree")?