What Exactly Did Justice Barrett Disagree With The Majority About In Trump v. JGG?
The vote in Trump v. JGG was 5-4. Here, Chief Justice Roberts joined Justices Thomas, Alito, Gorsuch, and Kavanaugh. This case was largely a victory for President Trump, in that the case can be heard in the Fifth Circuit, rather than the D.C. Circuit. Still, the Court went beyond its ambit. The only requested relief was to vacate the lower court’s ruling. But the Court held that the government must also afford the aliens a hearing before they can be removed. Here, there was a subtle merits ruling on the shadow docket.
Justice Sotomayor wrote a dissent which Justices Kagan and Jackson joined in full. Justice Barrett joined only Parts II and III-B. Last week I wrote that Justice Barrett’s vote in the Department of Education case did not signal a sea change. I also wrote that Justices Sotomayor and Jackson were not looking to alienate Barrett by calling out any hypocrisy with the USAID case. JGG makes me more confident in my speculation.
In JGG, Justice Barrett did not write separately to explain which parts of the majority opinion she in fact disagreed with. As I’ll explain, it isn’t clear to me exactly what Justice Barrett thinks.
Part I-A of the dissent lays out the the history of the Alien Enemies Act. Parts I-B and I-C provide the facts and procedural posture of the case. Justice Barrett apparently does not agree with these parts of the dissent, though it is not clear why.
Part I-D charges that the government flouted Judge Boasberg’s orders. I think it significant that Justice Barrett did not join this part. I doubt she agrees with the thrust of the ongoing contempt proceedings. And Part I-E repeats the refrain that the Supreme Court should let this issue “percolate” in the lower courts. Here, I think Justice Barrett agrees with the majority: further proceedings in a lower court that lacks jurisdiction would result in “wasteful delay.”
Part II of the dissent, which Justice Barrett joins, is only two paragraphs long. This part agrees with the majority that the aliens are entitled to due process before removal. Again, all nine Justices agree on this basic point. It is true–federal judges in Texas and in the Fifth Circuit are bound by the Due Process Clause.
Then we get to Part III of the dissent. Justice Barrett only joins Part III-B. She does not join Part III-A and Part III-C.
Part III-A is only two paragraphs long. Here, Justice Sotomayor argues that the Court lacks jurisdiction to review the TRO. Barrett rejected this argument on Friday in Department of Education v. California. Chi
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