A Mediocre Turnip Would Not Do As Much Harm

 Professor Vladeck reviews Alito’s dissent in A.A.R.P. here. You should read all of it. I just want to highlight his comments on a few of Alito’s bullet points:

Bullet 5: “The papers before us, while alleging that the applicants were in imminent danger of removal, provided little concrete support for that allegation.” [And the standard for an injunction pending appeal is supposed to require more.]

I have been rather … dogmatic … about how much the Supreme Court has flouted the standard for an injunction pending appeal in various rulings over the last few years. (In a nutshell, the Court has regularly granted this especially coercive form of emergency relief in contexts in which applicants couldn’t possibly have satisfied the high bar for obtaining it.) I’m sure it won’t shock you to learn that Justice Alito was in the majority in each and every one of the rulings I’ve criticized on that score.

But even if the Court were to hew to the requirement that coercive relief be granted only when the applicant’s right to such relief was “indisputably clear,” Alito jumps right over the obvious reason why the applicants’ rights to the notice and judicial review they’re seeking in A.A.R.P. was “indisputably clear”: Because the Supreme Court, in an opinion Alito joined, just articulated those rights in the specific context of the Alien Enemy Act on April 7. Indeed, the Court in J.G.G. expressly held that “AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” Insofar as the application claims that the Court’s own directives in J.G.G. have not been followed, and that the government was planning to imminently remove at least some of the applicants under the AEA without complying with J.G.G., it sure seems like the standard for an injunction pending appeal was satisfied.

This is precisely why I gave Justice Alito an anatomically impossible directive on Easter Sunday. Because there was very concrete support for the allegation.

The good professor goes on to note the NBC report in his discussion of bullet point 6:

Bullet 6: “[A]n attorney representing the Government in a different matter 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 perhaps the most troubling point Alito makes in his dissent. He is, quite obviously, referring to an exchange between a Justice Department lawyer (Drew Ensign) and Chief Judge Boasberg in the emergency hearing Boasberg held Friday afternoon in the J.G.G. case (where the ACLU was also trying to get a new TRO to block the apparently imminent AEA removals of folks from Texas). 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 did this at least once before, that I know of: in the majority opinion he wrote protecting a part-time football coach’s job who claimed he was fired because he led prayers on the field. In truth he was a contract employee, and his contract simply wasn’t renewed. Alito ignored facts like that, and invented some of his own, in order to support his conclusions and grant relief the coach, IMHLO, was not entitled to. As the professor points out, Alito couldn’t have known on Friday night that busses were already heading to the airport. But, had he not misrepresented what Ensign said to Judge Boasberg, Alito could have realized the government was playing fast and loose with J.G.G., something the majority clearly understood. These were, in other words, the “most critical and exigent circumstances.”  Alito just didn’t want them to be, so he tried to erase the inconvenient parts.

I disagree with Popehat. I don’t think Alito is a mediocre turnip. I think he’s a malicious motherfucker who can’t be bothered to give a shit about people who he wouldn’t have dinner with.

It would be bad enough if Alito’s dissent were merely tone-deaf. But its effort to find something wrong with the majority’s intervention smacks of an attempt not to take the law where it leads him, but to try to manufacture a justification for sitting on his hands while even more folks are wrongly removed to a Salvadoran prison, from which it is proving increasingly difficult to get anyone back. It’s fortunate that only one of his colleagues joined him.

I’ll take that as supporting my argument.