Justice Alito's TPS opinion offered a new theory of how courts can resolve "interim" appeals. Fortunately, Justices Gorsuch and Barrett refused to endorse it.
On the most basic issue federal judges reach first (does the law give me the power to even hear this case), Alito et al. exemplify the very worst aspects of judicial activism. Kudos to our host and his very bright 2L.
I think the reason justice Alito is eyeing hypothetical jurisdiction, is because folks on the left have been very clear that one of the ways they plan to deal with the right-wing court is through jurisdiction stripping. And if that happens I assume justice Barrett will have a change of heart.
FWIW if Dems have the votes to pass jurisdiction stripping they can also amend the all writs act and strip the Court's jurisdiction on the shadow docket too.
I think the chances of us ever getting to that point are pretty low. You'd need a Dem trifecta and willingness to end the filibuster and the Dems taking up jurisdiction stripping as a SCOTUS reform.
But if all that happened, of course they would try to jurisdiction strip on the shadow docket and interim orders. Indeed, I suspect that would garner more agreement among Dems than jurisidiction stripping on merits cases.
I think we are going to get a majority in Congress in 2026. Depending on what they do with that we may get 60 in the senate in 2028 and the presidency. If we get an Ossaff or AOC, you never know. Dems are going to have to get rid of this current leadership to do anything.
Thank you for your usual careful, knowledgeable analysis. Would you make anything of the fact that another case in which the Supreme Court seemed to decide a merits question when it lacked jurisdiction was Dred Scott?
The Supreme Court didn't emphatically reject the doctrine of hypothetical jurisdiction until 1998. There are lots of pre-1998 rulings in which the Court exercised it, or appeared to exercise it, but I'm not sure that means all that much if the correct, current rule is otherwise.
The point about preliminary injunctions, temporary restraining orders, and so on, was the first thing that occurred to me. Declaring that a court can exercise hypothetical jurisdiction as long as the context is "interim relief" ignores the question of what relief qualifies as "interim." Would Alito say that any order short of a final judgment is "interim"? And if not, where should the line be drawn? The concept of hypothetical jurisdiction risks undoing the concept of jurisdiction altogether.
My work doesn't leave me enough time to dive in as deeply as professor Vladeck offers. I subscribe to support that offering because I don't want to lose access to that option and I think the world needs Steve's concise analysis of the SCOTUS system. Steve is the closest thing I've encountered to a living embodiment of the mind of the Harrison Ford character Rick Deckard from Blade Runner, confirmed in his vids. I enjoy sharing my own blunt summaries in comments and i appreciate everyone's comments and replies.
Thank you for guiding us through this über complex labyrinth.
Justice Alito is a specialist at putting a learned gloss on what are his political biases -- that is not news. But if his opinion in Mullin v Doe is so obviously dismissive of Scallia's precedent, why is he not being called out more loudly by others in the community of constitutional lawyers?
BTW, I would much appreciate your analysis of Alito parsing of the Immigration and Naturalization Act of 1952 to effectively negate the non-refoulement obligations that the US took on in the international reugee treaty (1951) and its susequent protocol (1967).
This information is so hard to fully grasp. I need to re-read it a few times to get it, so I can see how many people throw their hands up in surrender, rather than spend the time to digest it all. But I wish more people would stay up on the current state of all things SC. The rulings they make can ruin the lives of scores of people (and have) and turn the rule of law on it's head. Thank you, Steve, for your efforts in explaining it all.
Just because the opinion handdown made a certain sort of Supreme Court gossip column "the justices are fighting" news doesn't mean it should be broadcast. I am sure there are all sorts of newsworthy fights behind close doors at SCOTUS too and it would be terrible to broadcast internal court discussions just so we could hear all the fights live.
Indeed part of the reported story on Alito-Sotomayor involves the private notification to Alito that Sotomayor was going to orally dissent. It was repored and again was "news" in this gossipy story, but nobody would claim we should broadcast those notifications live.
There's no reason we should hear everything that makes the court look bad live. The court's actual work is done through its opinions and orders. There may inevitably be interest in the gossip, but the Court should hold the line on catering to it.
As reported just now at CNN online: *A spokesman for the president’s legal team said in a statement Monday, that the “American People stand with President Trump as they demand an immediate end to all of the Witch Hunts, including the Democrat-funded travesty of the Carroll Hoaxes.”* Imho, Carroll should now sue again and Kaplan ought to again stand with the original verdict and ask the jury to again set a penalty. $83m was not sufficient to stop his lie that he is fighting for all us by defaming Carroll. I'd strip him of everything, as the jury did to Giuliani. Less would be a travesty. He belongs at the Hague and imprisoned for life for war crimes -- the latest is threatening again to annihilate Iran.
It occurs to me that if the Alito rule on jurisdiction and interim relief becomes the law of the land that MAGA litigants will quickly pivot and the interim relief docket will become the de facto final relief docket in much the same way that Trump has tried to used the "Acting" title for his appointees to avoid the Senate confirmation process.
Thanks for the thoughtful analysis of Alito's view on hypothetical jurisdiction. I assume the dissent did not expressly address the jurisdiction issue. If not, could the dissent be read to imply there was no jurisdiction to review the Noem determination on TPS? If so, how would that play into the analysis?
This term saw the creation of a "Kavanaugh Stop", a harmless stop that could last 5 minutes or 2 months, depending on your skin color.
Now, we have added an "Alito Right," which is a right for which there is no remedy for violating or method for preventing violations, nor even jurisdiction from courts.
What explanations do you offer in knowing that Justice Alito authored the three most controversial opinions?
They weren't from the same sitting, so I think it's just a fluke of timing re: when they were ready to go.
On the most basic issue federal judges reach first (does the law give me the power to even hear this case), Alito et al. exemplify the very worst aspects of judicial activism. Kudos to our host and his very bright 2L.
Let’s cut to the chase. Alito only pretends to be a conservative. He really is nothing but a political hack.
Alito’s treatment of the asylum statute in Mullin v. Al Otro Ladu is particularly egregious. See analysis in Just Security, https://www.justsecurity.org/144499/supreme-court-otro-lado-asylum-border/.
I think the reason justice Alito is eyeing hypothetical jurisdiction, is because folks on the left have been very clear that one of the ways they plan to deal with the right-wing court is through jurisdiction stripping. And if that happens I assume justice Barrett will have a change of heart.
FWIW if Dems have the votes to pass jurisdiction stripping they can also amend the all writs act and strip the Court's jurisdiction on the shadow docket too.
Its too early to get my hopes up!
I think the chances of us ever getting to that point are pretty low. You'd need a Dem trifecta and willingness to end the filibuster and the Dems taking up jurisdiction stripping as a SCOTUS reform.
But if all that happened, of course they would try to jurisdiction strip on the shadow docket and interim orders. Indeed, I suspect that would garner more agreement among Dems than jurisidiction stripping on merits cases.
I think we are going to get a majority in Congress in 2026. Depending on what they do with that we may get 60 in the senate in 2028 and the presidency. If we get an Ossaff or AOC, you never know. Dems are going to have to get rid of this current leadership to do anything.
Thank you for your usual careful, knowledgeable analysis. Would you make anything of the fact that another case in which the Supreme Court seemed to decide a merits question when it lacked jurisdiction was Dred Scott?
The Supreme Court didn't emphatically reject the doctrine of hypothetical jurisdiction until 1998. There are lots of pre-1998 rulings in which the Court exercised it, or appeared to exercise it, but I'm not sure that means all that much if the correct, current rule is otherwise.
The point about preliminary injunctions, temporary restraining orders, and so on, was the first thing that occurred to me. Declaring that a court can exercise hypothetical jurisdiction as long as the context is "interim relief" ignores the question of what relief qualifies as "interim." Would Alito say that any order short of a final judgment is "interim"? And if not, where should the line be drawn? The concept of hypothetical jurisdiction risks undoing the concept of jurisdiction altogether.
My work doesn't leave me enough time to dive in as deeply as professor Vladeck offers. I subscribe to support that offering because I don't want to lose access to that option and I think the world needs Steve's concise analysis of the SCOTUS system. Steve is the closest thing I've encountered to a living embodiment of the mind of the Harrison Ford character Rick Deckard from Blade Runner, confirmed in his vids. I enjoy sharing my own blunt summaries in comments and i appreciate everyone's comments and replies.
Thank you for guiding us through this über complex labyrinth.
Justice Alito is a specialist at putting a learned gloss on what are his political biases -- that is not news. But if his opinion in Mullin v Doe is so obviously dismissive of Scallia's precedent, why is he not being called out more loudly by others in the community of constitutional lawyers?
BTW, I would much appreciate your analysis of Alito parsing of the Immigration and Naturalization Act of 1952 to effectively negate the non-refoulement obligations that the US took on in the international reugee treaty (1951) and its susequent protocol (1967).
Trump remains a Sexual Abuser and Defamer-in-Chief:
Supreme Court Lets $5 Million Sex Abuse Verdict Against Trump Stand
President Trump had asked the justices to intervene after a jury found that he had sexually abused and defamed the writer E. Jean Carroll.
https://www.nytimes.com/2026/06/29/us/politics/supreme-court-trump-sexual-assault.html?unlocked_article_code=1.t1A.N4Bh.E_lMWF6QvMCn&smid=nytcore-ios-share
This information is so hard to fully grasp. I need to re-read it a few times to get it, so I can see how many people throw their hands up in surrender, rather than spend the time to digest it all. But I wish more people would stay up on the current state of all things SC. The rulings they make can ruin the lives of scores of people (and have) and turn the rule of law on it's head. Thank you, Steve, for your efforts in explaining it all.
Just because the opinion handdown made a certain sort of Supreme Court gossip column "the justices are fighting" news doesn't mean it should be broadcast. I am sure there are all sorts of newsworthy fights behind close doors at SCOTUS too and it would be terrible to broadcast internal court discussions just so we could hear all the fights live.
Indeed part of the reported story on Alito-Sotomayor involves the private notification to Alito that Sotomayor was going to orally dissent. It was repored and again was "news" in this gossipy story, but nobody would claim we should broadcast those notifications live.
There's no reason we should hear everything that makes the court look bad live. The court's actual work is done through its opinions and orders. There may inevitably be interest in the gossip, but the Court should hold the line on catering to it.
SCOTUS rejection of appeal means judge's ruling that Trump is a rapist stands for all time.
https://edition.cnn.com/2026/06/29/politics/e-jean-carroll-trump-supreme-court
As reported just now at CNN online: *A spokesman for the president’s legal team said in a statement Monday, that the “American People stand with President Trump as they demand an immediate end to all of the Witch Hunts, including the Democrat-funded travesty of the Carroll Hoaxes.”* Imho, Carroll should now sue again and Kaplan ought to again stand with the original verdict and ask the jury to again set a penalty. $83m was not sufficient to stop his lie that he is fighting for all us by defaming Carroll. I'd strip him of everything, as the jury did to Giuliani. Less would be a travesty. He belongs at the Hague and imprisoned for life for war crimes -- the latest is threatening again to annihilate Iran.
It occurs to me that if the Alito rule on jurisdiction and interim relief becomes the law of the land that MAGA litigants will quickly pivot and the interim relief docket will become the de facto final relief docket in much the same way that Trump has tried to used the "Acting" title for his appointees to avoid the Senate confirmation process.
Thanks for the thoughtful analysis of Alito's view on hypothetical jurisdiction. I assume the dissent did not expressly address the jurisdiction issue. If not, could the dissent be read to imply there was no jurisdiction to review the Noem determination on TPS? If so, how would that play into the analysis?
This term saw the creation of a "Kavanaugh Stop", a harmless stop that could last 5 minutes or 2 months, depending on your skin color.
Now, we have added an "Alito Right," which is a right for which there is no remedy for violating or method for preventing violations, nor even jurisdiction from courts.