A highly unusual outburst occurred at the Supreme Court last week. Thursday morning, after Justice Samuel Alito announced the court’s decision in a case regarding asylum policy at the U.S.-Mexico border, Justice Sonia Sotomayor read aloud from her dissent. That in itself is a relatively rare occurrence, but part of the court’s tradition.
Once Sotomayor finished, however, Alito broke from decorum to accuse his colleague of catching him off guard. Alito’s outburst was more than just his latest public display of crankiness. It exemplified a far more insidious trend: the conservative justices on the court treating the loss of comity as some sort of outrage, while ignoring the real-world consequences of their rulings.
The majority opinion in Mullin v. Al Otro Lado gave a green light to a federal government policy that tried to avoid allowing migrants to make humanitarian claims for asylum. Under the law, a noncitizen is allowed to apply for asylum once that person “arrives in the United States.” To circumvent this, the government placed Customs and Border Protection officials along the U.S.-Mexico border to prevent asylum-seeking noncitizens who did not have valid travel documents from physically entering the United States — even those who were approaching a port of entry and were in the process of entering the country.
Alito’s decision will prevent legitimate asylum-seekers from receiving the protection the law was intended to afford them.
Alito’s and Sotomayor’s opinions sparred about statutory definitions, including what the words “arrives in” meant. Alito held that since these refugees were not physically in the United States itself, they had not “arrived in” the country under the word’s “ordinary meaning.” Sotomayor pointed out that the “ordinary meaning” of “arriving in” does not always mean being within a physical space; one can say they have “arrived in” Washington, D.C., when they have landed at a nearby airport in Virginia. As Sotomayor opined, context matters — and the statutory context here, in her view, counseled against the Trump administration’s, and the conservative majority’s, cramped interpretation of the law.
Beyond this linguistic dispute, what is undoubtedly true is that Alito’s decision will prevent legitimate asylum-seekers from receiving the protection the law was intended to afford them. Reading her dissent from the bench, Sotomayor outlined the difficult path many asylum-seekers face and articulated how our current asylum legal framework sprang from the “moral reckoning that followed the Holocaust and World War II.” She recounted the awful case of the MS St. Louis, when the U.S. refused to accept over 900 Jewish refugees who sailed from Nazi Germany in 1939. More than 250 of those turned away would die in the Holocaust.
“Congress passed the Refugee Act of 1980 because it did not want this country to repeat the mistakes of its past,” Sotomayor wrote. “Yet if the refugees on the M. S. St. Louis were to walk up to a port of entry on our southern border today, the majority’s interpretation would allow immigration officers to refuse even to consider their asylum applications by physically blocking them from stepping foot onto U.S. soil.”
According to CNN’s Joan Biskupic, after Sotomayor finished, Alito “let his anger flash.”He snippily stated, “There is much that I would have added to my bench statement had I known there would be a dissent read.” The court later issued a statement that Sotomayor had in fact notified Alito in advance, claiming that his response was due to a “misunderstanding” on his part.
This testiness is something of a trend with Alito. He has repeatedly rolled his eyes and, one observer wrote, “visibly mocked” his colleagues while they have read their opinions. And in front of a national televised audience, he famously shook his head and mouthed the words “not true” when President Barack Obama criticized the Citizens United ruling during a State of the Union address.
While some of Alito’s conservative colleagues have a more genteel demeanor, they follow a similar trend.
These instances of pearl-clutching were reactions to legitimate public criticism of decisions with dramatic, often harmful consequences. Indeed, the refugee ruling was not the only deeply destructive immigration-related decision he issued on Thursday. He also penned the majority opinion in Mullin v. Doe, in which the court cleared the way for the Trump administration to revoke Temporary Protected Status for more than roughly 350,000 Haitian and Syrian immigrants. This decision could also affect the status of immigrants from 11 additional countries, which could ultimately throw over 1 million people in the U.S. into limbo scrambling to avoid removal back to their dangerous homelands.
While some of Alito’s conservative colleagues have a more genteel demeanor, they follow a similar trend: lambasting colleagues or critics for a supposed lack of decorum, while discounting the material and immediate repercussions of their decisions. In recent years, the conservative justices, including John Roberts and Amy Coney Barrett, have repeatedly lamented attacks on the court’s integrity and legitimacy.
But, as Justice Elena Kagan pointedly retorted, those attributes are rooted in its “connection with the public and with public sentiment.” A decade of decisions — repealing abortion rights; preventing the government from taking action on climate change; eroding voting rights, civil rights and labor power; and even granting the president criminal immunity for official acts — has radically reshaped American life and the law. As Sotomayor has pointed out, these decisions often come without thoughtful consideration of their consequences on the people who relied on the protections these laws and rights afforded them.
Yet the conservative justices seem most concerned about perception and process, rather than the tangible impact of their work. Justice Clarence Thomas, for example, bemoaned that the leak of the opinion in Dobbs v. Jackson Women’s Health Organization posed an existential threat to the court’s existence, and indeed, to the country itself. “I wonder how long we’re going to have these institutions at the rate we’re undermining them,” he fretted. “And then I wonder when they’re gone or destabilized, what we’re going to have as a country.”
Fortunately, these attempts to influence public perception of the court and avoid blame for throwing millions of lives into tumult are not working; the American people increasingly see through these efforts. Public approval of the court is at historic lows — nearly 60% of Americans say the Roberts Court is “out of touch with the values and beliefs of most Americans,” and 7 in 10 Americans believe the justices put ideology over impartiality.
That is not a reflection of leaks or tough criticism by outsiders, but a result of the Roberts Court’s substantive impact on American life. And the damage will only get worse.
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