Justice Samuel Alito responded tersely from the bench Thursday to Justice Sonia Sotomayor’s dissent in a Supreme Court asylum case, a highly unusual exchange that underscored tensions over the court’s immigration rulings. The conservative majority sided with the Trump administration in a 6-3 decision allowing officials to turn away asylum seekers who have not yet crossed onto U.S. soil.
Alito, who authored the majority opinion, appeared surprised that Sotomayor would read her dissent aloud in full—itself a rare occurrence signaling strong opposition to the ruling. After she finished, Alito softly cleared his throat and offered an off-the-cuff response, saying there was much more he “would have added” had he known she would read her dissent from the bench.
The case centered on a “metering” policy that allows border officials to prevent asylum seekers from even presenting their claims by stopping them before they reach U.S. soil. Alito wrote that a migrant “arrives in the United States” only when he or she actually crosses the border, rejecting the argument that someone in the process of arriving—even if blocked—qualifies for asylum protections. Responding to Sotomayor after her bench statement, Alito described the asylum policy as “orderly and humane,” before turning to his next opinion.
Justices almost never respond to dissents in open court. The practice is so rare that legal scholars have studied the conditions that provoke it, and it typically signals either a justice’s strong displeasure with the dissent or a sign that an oral dissent is coming. Sotomayor’s decision to read from the bench—taking roughly ten minutes—itself indicated her deep objection to the majority’s reasoning.
Alito noted that the metering policy had been adopted by two administrations in response to surges in migration at the border. The policy began under President Barack Obama, was formalized during Trump’s first term, and was ended under President Joe Biden. The Trump administration had asked the court to clarify that it could restart the policy if border conditions warranted it. In his response from the bench, Alito emphasized that the policy represented a measured approach to immigration enforcement.
Sotomayor’s dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, invoked the 1939 voyage of the MS St. Louis, a ship carrying nearly 1,000 Jewish refugees that the United States turned away; many later perished in the Holocaust. “If the refugees on the MS 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,” Sotomayor wrote. She warned that the ruling would have predictable consequences, including turning vulnerable people back to face persecution and encouraging dangerous illegal border crossings.
The bench exchange reflected broader strains within the court as it approaches the end of its term. The conservative justices displayed little visible reaction to Sotomayor’s reading, with most staring at their papers, though Justice Brett Kavanaugh watched her throughout. Alito, meanwhile, rocked back and forth in his chair during portions of her dissent, at one point propping his chin in his hands and staring at the ceiling. The exchange marked one of the most visible moments of tension on the bench this term.
Sources
- The Hill — Alito’s terse response to Sotomayor’s asylum dissent from the bench, details of his body language and remarks
- CNN — Alito’s description of the policy as “orderly and humane,” Sotomayor’s invocation of the MS St. Louis, and the 6-3 ruling
- Roll Call — Alito’s statement that the policy was adopted by two administrations, Sotomayor’s dissent on the meaning of “arrives in”
