Sam Alito Takes Unusual Step Of Whining From The Bench After Getting Called Out For Lazy Hackery

Justice Alito spoke out of turn this morning in a highly unusual break from Supreme Court protocol, to complain that there “was much he would have added,” after Justice Sotomayor publicly eviscerated him in her dissent. It’s the response one expects from a middle schooler begging for a better grade, imploring to the audience that he really could have gotten the right answers if he’d had extra time to work on it.

Sure, buddy. So much more he could’ve added. Also he totally has a girlfriend, but she’s from Canada and you don’t know her — and you can’t meet her because she’s physically prevented from reaching the border.

After ruling in Mullin v. Al Otro Lado that the United States can disregard the entire international regime for recognizing political asylum, rolling back the clock to dismantle a system implemented in response to the Holocaust, Alito seemed peeved that Justice Sotomayor had the temerity to read from her dissent, highlighting some of the more egregious instances of shoddy reasoning in Alito’s opinion.

And so, Alito managed to Streisand Effect his own intellectual laziness and left people in the courtroom gasping in the process . Sotomayor reading her dissent likely would have faded into the ether — especially on a busy day where the Supreme Court also managed to rule in favor of both cancer and gunmen invading private businesses — but Alito’s unorthodox outburst swung focus back on the dissent and got wondering just how biting it must have been to elicit this response.

Though, in fairness, it doesn’t actually have to be biting to get under Alito’s skin. Any time Alito runs into an argument he can’t answer, he lashes out with more insult than substance. If a woman of color shows him up, he gets even more frustrated.

“This case presents a straightforward question,” Alito’s majority opinion opens. Which is true! Immigration law requires the government to hear asylum claims from individuals who show up at the border. The Trump administration — and, to be clear, the Biden administration also pursued this cheeky interpretation — takes the position that if they prevent individuals who have come to present themselves at the border from physically reaching the precise border line, they can legally stick their fingers in their ears and yell, “la, la, la, I can’t hear you” in response to asylum petitions. This ignores the history and purpose of the asylum law, replacing the straightforward question — did these people show up to claim asylum — with one more befitting an audience suffering from a massive head injury. Namely, “yes, but they aren’t really ‘in’ the United States, are they?”

In ordinary speech, no one would say that a person “arrives in” a place—for example, a house, a city, or a country—before the person enters that place.

Yes, they do. When someone pulls up to a party they’ve been dreading, they will absolutely describe themselves as having arrived long before opening the door, crossing the street, walking up the driveway, psychologically disassociating, and ringing the bell to hang out at their boss’s “mandatory fun” party.

“We hold that an alien who is standing in Mexico does not ‘arriv[e] in the United States’ by attempting, and failing, to set foot in this country,” the majority states. “An alien ‘arrives in the United States’ only when he crosses the border.”

But the statute doesn’t contemplate the federal government affirmatively blocking those people from reaching the border. Alito responds to this with sophomoric flair, comparing it to a running back not arriving “in” the endzone when tackled short. The trouble with employing analogies as legal argument is they often highlight the fact that you’re talking about everything except the issue at hand. And that’s what’s on display here. A cursory review of the law’s text and history reveals the clear intent to allow people coming to the border to apply for asylum.

As Justice Sotomayor explains in dissent, stopping governments from moving the border goalposts was an express purpose of this law:

Section 1158(a) and the rest of the current asylum system developed in response to the international moral reckoning that followed the Holocaust and World War II. One infamous incident, the voyage of the M. S. St. Louis, is emblematic. In 1939, over 900 Jewish refugees attempted to flee persecution in Nazi Germany by setting sail aboard the M. S. St. Louis, which was headed to Cuba and the United States. The ship docked in the Havana harbor for days, but the Cuban Government refused to allow the fleeing passengers offboard. The ship then sailed near the Miami coastline, but the U. S. Government also turned them away in part because the immigration laws at the time had strict country quotas and the relevant quota was already filled for that year. The ship sailed to Canada and was again turned away. It eventually returned to Europe. Tragically, over 500 of the refugees that had attempted to flee were trapped in Western Europe under German control, and over 250 of them died during the Holocaust. Most of them were “murdered in the killing centers of Auschwitz and Sobibór” and “the rest died in internment camps, in hiding, or attempting to evade the Nazis.” S. Ogilvie & S. Miller, Refuge Denied: The St. Louis Passengers and the Holocaust 174–175 (2006).

Governments used to avoid hearing asylum claims by preventing seekers from accessing to the border. The United States stopped doing that because it facilitated genocide. Alito, who routinely sweeps away precedent on flimsy accounts of armchair history, has no response to the historical context surrounding this statute, so he dutifully refuses to acknowledge it at all.

Instead, he retreats to dictionaries and arbitrary application of the canons of construction. Where other sections of the expansive body of immigration law use “near” the border as a separate concept, that’s given conclusive authority. When the statute at issue uses physically present and arrives in as though they’re two separate things, suddenly the “anti-surplusage canon is not an iron rule.” Canons of interpretation can and do conflict all the time, but usually courts hash them out by weighing their interpretive value against each other. Alito instead treats them as a scoreboard, tallying his multiple attenuated examples against the glaring one in the statute itself and declaring a win.

Then in a move Kafka would dismiss as too heavy handed, he throws in the extraterritoriality presumption to say the law couldn’t possibly apply as though immigration isn’t all about the liminal zone between conceptions of territoriality.

And, despite the majority’s framing, this case isn’t about the government keeping immigrants out. The government can still DENY the asylum petition. This case is about the federal government trying to avoid even hearing the petition in the first place by throwing up barriers to frustrate the clear aim of the statute. That Congress didn’t include language to explicitly bar the executive branch from circumventing the law is not the killer textual argument Alito imagines.

But maybe the biggest takeaway from Alito’s unsolicited tantrum is Chief Justice John Roberts losing control of this Court. The Chief spent so much of his tenure trying to put a prim and proper face on the campaign to erase constitutional freedoms. Part of the mission to frame the radical assault on the rule of law as just calling “balls and strikes,” was hyping collegiality and a business-as-usual atmosphere.

Now Roberts has Insurrection Boy throwing fits out of turn. All the under-the-table grifting hurt the Court, but at least within the courtroom itself, the proceedings vaguely resembled a professional outfit. Conservative justices were already putting their exasperated complaints in writing, like when Amy Coney Barrett couldn’t think of a relevant response to Ketanji Brown Jackson’s dissent in the injunctions case and instead huffed that she would instead “not dwell” on the on point critique. But it’s breaking containment when it spills into whining from the bench.

And, frankly, that’s for the best. The majority has abandoned their professional obligations to the rule of law. It’s all just a first-year legal writing exercise to slap superficial, lawyerly sounding justifications on legislative action. This becomes clearer as the supermajority feels less and less pressure — even as a point of professional or intellectual pride — to build a serious case for their decisions. They have the votes, why bother researching and writing an argument that could stand up to the scrutiny of a dissent? It’s not an accident that this majority loves the shadow docket so much. They don’t like having to put together a coherent reply to their dissenting colleagues and would rather “not dwell” on those arguments.

Which is all to say that — like the hypothetical middle schooler — Sam Alito did not, in fact, have “much more he would have added.” He had nothing and he got exposed. The public needs more reminders that this Court isn’t doing its homework.

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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 if you’re interested in law, politics, and a healthy dose of college sports news.