On opinion days, a certain silence descends upon the Supreme Court chamber. Reporters bend forward. Along the side walls, clerks move in their seats. Even before a word is read, everyone is roughly familiar with the script. Thursday was peculiar because of this. The script broke down for a few awkward moments.
Justice Samuel Alito had just completed one of three opinions he had written that day, summarizing his decision in a case involving asylum seekers at the southern border. He doesn’t spend much time thinking about his summaries. His typical register is “quick, dry, get to the point.” Thus, the room changed when Justice Sonia Sotomayor leaned into her microphone to read a dissent aloud.
It’s important to consider how uncommon that is. Dissents are frequently written by justices. Reading them aloud in public court is a completely different gesture, a sort of public outburst made when a justice believes the majority made a grave error. Sotomayor used hers to revisit a somber period in 1939 when a ship carrying Jewish refugees escaping Nazi Germany was turned away by the United States. During the Holocaust, about 250 of those passengers perished. The majority’s decision, she warned, could “extinguish the light of the torch of the Statue of Liberty.” Strong language, carefully selected.
The part that people are still discussing is what transpired next. Rather than proceeding to his next viewpoint, Alito stopped and pushed back, appearing as though he had bitten into something sour. He did this without making any notes. “There’s much that I would have added to my bench statement had I known there would be a dissent read,” he stated. It wasn’t yelling. It wasn’t dramatic. However, it landed like a thunderclap for a body that takes pride in its choreographed restraint.
The court’s press office had prepared an explanation by Friday, but it wasn’t very satisfying. According to the statement, Sotomayor’s chambers had actually informed Alito beforehand. He made the mistake. The spokesperson’s two-line statement, “It was a misunderstanding on Justice Alito’s part,” provided a neat conclusion to an otherwise messy moment in the room.
Here, it’s difficult to ignore the timing. With decisions on birthright citizenship and presidential authority over independent agencies still pending, this is the busiest period of the court’s term. These cases will have a far greater impact on Trump’s second term than Thursday’s asylum ruling. When the stakes are high, tension usually comes to the surface, and this isn’t even the first crack to appear. Back in April, Sotomayor publicly apologized to Kavanaugh for remarks she had made regarding his writing. In March, Kavanaugh and Jackson publicly disagreed over the deluge of emergency orders that favored the administration.
All of this does not imply that the justices despise one another or that their well-known lunches together are a show. Even on issues like the Second Amendment rights of marijuana users this term, which could have easily split along predictable lines, they continue to rule unanimously quite frequently. However, there’s a feeling that this year’s seams are showing a bit more than usual, and it seems that one confused message regarding a dissent was sufficient to make that apparent to everyone observing.
