Sam Alito Dissent Would Get Him Cold-Called Into Oblivion In Law School

On Friday, the ACLU asked the Supreme Court if it actually trusted the Trump administration to follow the law and around 1 a.m. on Saturday morning, seven of the justices responded “LOL, no.”

After already ordering the government to stop deporting people to El Salvador slave prison without due process, the government spent the end of the week moving detainees in a manner that looked suspiciously like the prelude to sending another shipment to the gulags. Justice Alito — the justice responsible for the Fifth Circuit — didn’t act, but the rest of his colleagues sans Thomas sure did.

The order came out before Alito penned his dissent, an unusual move that can be read charitably as a courtesy to relieve Alito from writing in the middle of the night and less-than-charitably as the rest of the Court calling bullshit on an effort by the justice to slowplay the order to give the White House a chance to get detainees snug in El Salvadoran beds before the justices could act. He did manage to get a dissent filed roughly 22 hours later and… the Court was right that it was not worth the wait.

Bro got an extension for the take home final and he still couldn’t muster a passing grade.

Issue, Rule, Application, and Conclusion… IRAC. It’s the first-year law student’s guide to reading a court opinion. Alito doesn’t really deliver when it comes to checking all those boxes. Instead, he produced a little less than five pages of material on Saturday channeling South Park’s infamous Underpants Gnomes:

Step 1: Issue; Step 2: Rule; Step 3: ???; Step 4: Conclusion.

It is not clear that the Court had jurisdiction. The All Writs Act does not provide an independent grant of jurisdiction…. Therefore, this Court had jurisdiction only if the Court of Appeals had jurisdiction of the applicants’ appeal.

That’s an issue and that’s a rule… at least up until the last part. As Professor Steve Vladeck notes in his review of the Alito dissent, the second sentence doesn’t make a lick of sense because it would mean the Supreme Court couldn’t review an appellate court’s decision that it lacked jurisdiction even if the lower court is wrong.

Alito suggests that the appellate court couldn’t have jurisdiction, because the district court — Trump-appointed judge Wesley Hendrix — didn’t technically deny the temporary restraining order:

But here, the “order” that applicants appealed was what they viewed as the District Court’s “constructive” denial of their request for a temporary restraining order (TRO).

This is where one would normally apply the rule to the facts. Did the district court’s action properly set up an appeal? Judge Hendrix sat on the issue for 14 hours despite the fact that the government has already spirited away detainees in a naked bid to avoid judicial review and then dissembled about it.

The government’s behavior on this point was so egregious that the Supreme Court has already had to rule unanimously against the Trump administration on this point. And since then, the government has openly pissed on the Supreme Court’s ruling. At this point, Trump is taking the public stance that once a detainee arrives in El Salvador, they have no recourse.

One can see how that might amount to a risk of “irreparable harm.” You know, if one were interested in applying the rules to the facts here.

In any event, does a 14-hour delay under these circumstances properly amount to a constructive denial of the injunction or not? Alito… doesn’t even try to answer! Instead, he asserts that it’s “not clear” — which is kind of the point of the appeal.

It is questionable whether the applicants complied with the general obligation to seek emergency injunctive relief in the District Court before asking for such relief from an appellate court.

Issue and rule, again. Application? Again, not so much. Did the applicants seek emergency relief? Clearly they did for over half a day. Does that sufficiently amount to fulfilling this obligation? Alito does not say other than to invent the idea that this all happened on 45 minutes notice — which it did not — and he’s unwilling to cite any reason why 45 minutes wouldn’t meet even if it were true. No cases. Just vibes.

Which he might’ve been able to get away with at 1 a.m. on Friday. After an additional 22 hours to write a four-and-a-half page essay, he’s got to put in at least some effort. He’s able to put together a lengthy prebuttal for the Wall Street Journal on a dime when he’s about to be outed for taking luxury vacations from billionaires… he should try bringing some of that energy to his actual job.

When this Court rushed to enter its order, the Court of Appeals was considering the issue of emergency relief, and we were informed that a decision would be forthcoming. This Court, however, refused to wait. But under this Court’s Rule 23.3, “[e]xcept in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested was first sought in the appropriate court or courts below or from a judge or judges thereof.”

“Ahem… Mr. Alito: do the facts here amount to ‘extraordinary circumstances’ per the rule?” a stern professor would ask at this juncture. Alito isn’t even going so far as to say “no” let alone provide any legal reasoning. This would earn him a ruthless interrogation in law school, but as a judge he gets to just move on to the next bullet point in lieu of even attempting an answer.

The only papers before this Court were those submitted by the applicants. The Court had not ordered or received a response by the Government regarding either the applicants’ factual allegations or any of the legal issues presented by the application.

That’s how these injunctions work! If the Court waited for the government to write up a response, the people at issue would be in CECOT before the DOJ fired up ChatGPT to scribble whatever they’re planning to submit. The Supreme Court will hear from the government in due course and no one gets shipped to another country in the meantime. Status quo preserved yadda yadda yadda. This is a bit of a Trump DOJ own goal, of course. If they weren’t so adamant that it’s impossible to retrieve someone from El Salvador, they might be able to sell the story that there’s no irreparable harm.

But the administration doesn’t seem to care as much about winning these cases than laying the groundwork to ignore the courts.

The papers before us, while alleging that the applicants were in imminent danger of removal, provided little concrete support for that allegation. Members of this Court have repeatedly insisted that an All Writs Act injunction pending appeal may only be granted when, among other things, “the legal rights at issue are indisputably clear and, even then, sparingly and only in the most critical and exigent circumstances.”

Alito cites cases here… though doesn’t engage with the important question: is this one of those critical and exigent circumstances? “Here’s the rule, it has the following exceptions… ANYWAY ON TO MY NEXT POINT” is a failing law school exam.

Presumably Alito knows this and that’s why he was probably hoping the government could have flown everyone across the border before he had to commit any of this gibberish to paper.

Although this Court did not hear directly from the Government regarding any planned deportations under the Alien Enemies Act in this matter, an attorney representing the Government in a different matter, J. G. G. v. Trump, No. 1:25–cv–766 (DC), informed the District Court in that case during a hearing yesterday evening that no such deportations were then planned to occur either yesterday, April 18, or today, April 19.

This is the closest he’s going to come to hinting at a fact that might keep this from warranting an exception to the rule. But as a recitation of the facts, it’s half the story at best — leaving out the government’s demonstrated conduct of hurriedly launching unannounced flights to get around the courts — and disingenuous at worst. From Professor Vladeck’s account:

According to multiple accounts of folks who were listening, Ensign said he was unaware of any flights scheduled for Friday, but that he was specifically instructed to “reserve the right” for the government to conduct removals on Saturday, April 19. In other words, the DOJ lawyer did not say what Alito said he said.

Alito whimpers to a conclusion with a one-sentence bullet point:

Although the Court provided class-wide relief, the District Court never certified a class, and this Court has never held that class relief may be sought in a habeas proceeding.

Well, there’s a first time for everything. And in this instance, it’s not even much of a stretch since multiple circuits have held this and none have yet disagreed.

Both the Executive and the Judiciary have an obligation to follow the law. The Executive must proceed under the terms of our order in Trump v. J. G. G., 604 U. S. _ (2025) (per curiam), and this Court should follow established procedures.

Except Alito has offered nothing to suggest that this violated any of the Court’s established procedures. He admits repeatedly that this would be allowed in exceptional circumstances and then never bothers to pose a reason why this isn’t exactly the sort of exceptional circumstance the rule is designed to accommodate.

It’s either intellectually lazy or deeply cynical. Or a combination of both.

(Dissent on the next page…)

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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