Supreme Court Drama Between Justice Alito and Justice Sotomayor

David covered the two Supreme court ruling related to immigration when they were announced this morning. But there was a bit of drama inside the courtroom as the decision on the  Mullin v. Al Otro Lado case was announced. Apparently, Justice Sotomayor surprised Justice Alito by reading a portion of her dissent from the bench.

Alito moves right along to his second case, Mullin v. Al Otro Lado, which holds that an “alien” standing in Mexico does not “arrive” in the United States by attempting, and failing, to set foot in this country but only when he crosses the border. The Immigration and Nationality Act thus neither entitles such a person standing in Mexico to apply for asylum nor requires an immigration officer to inspect him.

This lineup includes a concurring opinion by Thomas, as well as a dissent by Sotomayor, joined by Kagan and Jackson, and a separate dissent by Jackson.

Alito pauses, and I am looking down jotting in my notebook ready for him to move on to his third case when another voice sounds from the bench.

Sotomayor, it quickly becomes clear, is delivering an oral dissent in this case, and she opens with something from page 29 of her 35-page opinion, the story of the M.S. St. Louis, the ship that left Nazi Germany in 1939 with some 900 Jewish refugees but was turned away in Cuba, Miami, and Canada before returning to Europe, where 250 of the refugees died in the Holocaust.

According to several observers, Justice Alito was not pleased with this.

As Sotomayor read her 35-page dissent, Alito — never known for his poker face — began rocking back and forth in his chair before leaning forward, propping his chin in his hands and staring at the ceiling while his colleague described the majority opinion as “egregiously wrong,” according to The Hill.

Sotormayor’s dissent goes on for ten minutes at which point Justice Alito responds.

“There is much that I would have added to my bench statement had I known there would be a dissent read,” he says. This causes heads to turn in the courtroom. He goes on with a short substantive retort to Sotomayor, paraphrasing his written opinion’s point that “the government’s policy merely delayed entry by some aliens as a way of improving a situation that both interfered with the proper conduct of inspection and created unsanitary, inhumane, and sometimes dangerous conditions at ports of entry.”

He tells the audience to read the opinion and says, “I will move on to the next case.”

Afterwards, reporters in the press room were discussing what this meant. Since Alito paused between decisions to allow Sotomayor to speak, it wasn’t a surprise in the sense that he didn’t know it was coming at that moment. The consensus is that he may have been notified about the plan for an oral dissent that morning, not giving him time to prepared a written response he could read from the bench. Instead, he had to wing it.

It is very unusual for justices to snipe at each other from the bench or add commentary when delivering opinions. Past and current members of the court who hold opposing points of view have emphasized their strong personal and professional relationships, helping to elevate the public perception of the judiciary.

And that was it. A little bit of drama and a hint that maybe Sotomayor surprised Alito with this so he wouldn’t be prepared to respond. That’s the kind of thing that may lead to some bad blood on the court. Stay tuned because there are a bunch more cases to be announced and this will not be the last time the court’s three liberals have to content themselves with angry dissents.

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