At a recent Supreme Court sitting, Justice Samuel Alito took the unusual step of responding from the bench to Justice Sonia Sotomayor’s spoken dissent from an immigration-related opinion he wrote.
The June 25 incident took place in the final days of the current court’s session, as the justices try to issue opinions in remaining cases before the court’s summer recess, which typically begins before the Fourth of July.
Sotomayor said many asylum seekers face a challenging journey and recounted that after the United States and other countries turned back a ship full of Jewish refugees fleeing persecution in Nazi Germany in 1939, about 250 of those passengers died later in the Holocaust.
Sotomayor said the majority’s opinion here would allow the Trump administration to prevent people from applying for asylum at the border, and that this would lead to more deaths. The decision “regrettably and tragically extinguishes the light of the torch of the Statue of Liberty,” she said.
Sotomayor’s spoken dissent seemed to come as a surprise for Alito, who responded extemporaneously to it. He appeared frustrated, saying he would have said more during the court sitting and provided more details if he had known she planned to speak.
For the court’s majority, Alito said, the case was about whether border officials can delay asylum seekers’ entry into the United States “until they can be processed in a safe and orderly way.”
A federal law says that “any alien who is physically present in the United States or who arrives in the United States … may apply for asylum,” regardless of legal status.
In the majority opinion, Alito wrote: “This case presents a straightforward question: whether an alien who seeks to enter the United States from Mexico ‘arrives in the United States’ when he or she is still in Mexico.
Tensions in Public View
This was not the first time tensions between Supreme Court justices have been on public display.Lower courts have stifled Trump’s policies by issuing orders blocking some of them. The Supreme Court has often provided emergency relief by lifting those orders.
Jackson said the Supreme Court is “creating a kind of warped” legal process by intervening at an early stage of a case and basically predicting the outcome before the arguments are developed fully.
“The administration is making new policy … and then insisting the new policy take effect immediately, before the challenge is decided,” Jackson said. “This uptick in the court’s willingness to get involved in cases on the emergency docket is a real unfortunate problem.”
Kavanaugh said the Supreme Court is only doing its job by addressing the emergency applications filed.
The Department of Justice’s rush to the Supreme Court didn’t begin during the Trump administration, the justice said. He said that as it becomes more difficult to enact legislation through Congress, administrations “push the envelope in regulations.”
“Some are lawful, some are not,” he said.
Sotomayor also made a rare public apology in April to Kavanaugh for making what she called “hurtful comments.”
Culture of Collegiality
Supreme Court justices have publicly stated that members of the nation’s highest court are friendly and civil in their dealings with each other and have eschewed partisanship.“Our court consists of nine appointees by four presidents. We deal with some of the most controversial issues in the country, yet we maintain collegial relations with each other,” he said.
“They began to adopt our buzzwords as buzzwords—some of the discussions we were having like on originalism and plain text and things like that,” Sotomayor said. “But instead of discussing those terms with respect to approaches that made sense and why—with all the nuances that those approaches contain—they just began to label people according to the buzzwords.”
Barrett said, “We’re not Obama judges and Trump judges, but we’re also not Democratic judges or Republican judges.”
“We don’t sit on opposite sides of the aisle,” she said. “We all wear the same color of black robe … our loyalty lies all to the Constitution and to the court.”
Barrett said even though the court is often described as “deeply divided,” the vast majority of cases lead to unanimous or close-to-unanimous decisions.
Barrett likened the court to a “family” in which the justices offer small acts of kindness to promote a culture of collegiality.
She said it is a Supreme Court tradition for the second most junior justice to throw a party for the new justice who is entering. Kavanaugh, she said, threw a party for her, while she threw one for Jackson.