Historically, the Supreme Court has tried not to enter into political controversies unless, as happens not infrequently, it can’t be avoided. But in the middle of the night, the Court once again jumped into the controversy over the Venezuelan gang Tren de Aragua, for no apparent reason. The Court entered this brief order in a case styled AARP v. Trump. AARP purports to be representing a group of gang members who have been detained in Texas awaiting deportation. (Why AARP?) After a brief preface, the Court said:
The Government is directed not to remove any member of the putative
class of detainees from the United States until further order of this Court.
A putative class is a group identified in an alleged class action, where the class has not been certified by the court.
Justices Alito and Thomas dissented from that midnight order. Justice Alito wrote a powerful opinion in which he explained why he thinks the Court’s order is misguided.
Shortly after midnight yesterday, the Court hastily and prematurely granted unprecedented emergency relief. Proceeding under the All Writs Act, 28 U. S. C. §1651, the Court ordered “[t]he Government” not to remove a “putative class of detainees” until this Court issues a superseding order.
Alito identifies a number of problems with the order. Follow the link for Alito’s explanations of each point and citations to authorities:
* It is not clear that the Court had jurisdiction. …
* It is questionable whether the applicants complied with the general obligation to seek emergency injunctive relief in the District Court before asking for such relief from an appellate court. ….
* When this Court rushed to enter its order, the Court of Appeals was considering the issue of emergency relief, and we were informed that a decision would be forthcoming. This Court, however, refused to wait. ….
* The only papers before this Court were those submitted by the applicants. The Court had not ordered or received a response by the Government regarding either the applicants’ factual allegations or any of the legal issues presented by the application. And the Court did not have the benefit of a Government response filed in any of the lower courts either.
So the Supreme Court handed the Democrats a PR victory without even hearing the administration’s side of the case.
* The papers before us, while alleging that the applicants were in imminent danger of removal, provided little concrete support for that allegation. ….
* Although this Court did not hear directly from the Government regarding any planned deportations under the Alien Enemies Act in this matter, an attorney representing the Government in a different matter, J. G. G. v. Trump, No. 1:25–cv–766 (DC), 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. ….
* Although the Court provided class-wide relief, the District Court never certified a class, and this Court has never held that class relief may be sought in a habeas proceeding.
This summary seems devastating:
In sum, literally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order.
And, in conclusion:
Both the Executive and the Judiciary have an obligation to follow the law. The Executive must proceed under the terms of our order in Trump v. J. G. G., 604 U. S. ___ (2025) (per curiam), and this Court should follow established procedures.
Emphasis added It is often pointed out, correctly, that the rule of law does not mean rule by lawyers. But lawyers and judges sometimes forget this principle.
