Justice Samuel Alito responded tersely from the Supreme Court bench on Thursday after Justice Sonia Sotomayor delivered a rare oral dissent in a major asylum case, marking an unusually public clash between the conservative and liberal wings of the court in the courtroom itself.
Sotomayor spent 10 minutes reading aloud from her 35-page dissent in Mullin v. Al Otro Lado, which challenged the government’s policy of turning back asylum seekers before they set foot on U.S. soil. She invoked the MS St. Louis, the ship that carried nearly 1,000 Jewish refugees from Nazi Germany in 1939 but was turned away by Cuba, Miami, and Canada before returning to Europe, where 250 passengers died in the Holocaust.
When she finished, Alito paused and then spoke. “There is much that I would have added to my bench statement had I known there would be a dissent read,” he said, according to SCOTUSblog’s courtroom account. He then offered a brief substantive rebuttal, describing the asylum policy as “orderly and humane” before moving to his next opinion.
The Supreme Court had just ruled 6-3, with Alito writing for the majority, that migrants standing in Mexico do not “arrive” in the United States by attempting to cross the border. That interpretation clears the way for the Trump administration to revive a controversial “metering” policy that allows border officials to cap daily asylum applications at ports of entry, effectively turning away seekers before they can formally apply for protection.
Sotomayor, joined in dissent by Justices Elena Kagan and Ketanji Brown Jackson, warned that the consequences would be dire. “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 US soil,” she wrote in her dissent.
The metering policy originated under President Barack Obama but was formalized during Trump’s first term. It lapsed under President Joe Biden and has not yet been reinstated, though the administration indicated it wants the option available should border conditions worsen. The ruling gives the Trump administration the legal authority to restart it at will.
A Rare Courtroom Exchange
Bench responses to oral dissents are highly unusual. The closest historical precedent came in 2015 in Glossip v. Gross, a death penalty case. Justice Stephen Breyer read a dissent from the bench questioning the constitutionality of capital punishment itself, and Justice Antonin Scalia delivered a short rebuttal from the bench in response, according to SCOTUSblog. That case drew national attention for the intensity of the disagreement.
The Alito-Sotomayor exchange Thursday underscores deepening tensions on the court as it approaches the end of its current term with several high-profile opinions still pending, including cases on birthright citizenship, transgender sports bans, and presidential power. The conservative majority has handed the Trump administration major victories on immigration, while the liberal justices have grown more vocal in their objections.
Alito’s comment that he did not expect Sotomayor to dissent orally raised some questions in the press room afterward. Observers noted that Alito typically offers short summaries from the bench but tends to respond more fully when he anticipates an oral dissent. In this case, he appeared to pause expectantly at the end of his initial summary, suggesting he may have had some warning but perhaps underestimated the length and intensity of her statement.
Sources
- SCOTUSblog — detailed courtroom account of the Alito-Sotomayor exchange and comparison to Glossip v. Gross precedent
- CNN — reporting on Alito’s response describing the asylum policy as “orderly and humane” and context on the asylum rulings
- The Washington Post — confirmation of the 6-3 decision and Sotomayor’s MS St. Louis reference
