SCOTUS On Deporting Alien Enemies -- A Win Is A Win But The Details Do Increase The Procedural Burden For The Administration

The Chief Justice remains consistent with past decisions in terrorism cases, while Justice Barrett's dissent isn't what it is being portrayed as.

The basic details of the Supreme Court’s decision on Monday bringing a halt to the efforts by District Judge Boasberg in Washington D.C. to stop removal of Venezuelan gang members have been discussed in various places over the past two days. But some of the “reporting” on what the five Justice “per curiam” opinion stands for, and what to read into Justice Barrett joining the dissenters, is not only inaccurate, it contributes to continued misinformation from both sides blaming the Court for acting/not acting depending on whose ox is being gored.

A few basics — a per curiam opinion does not have a single author. It is often a composite of contributions from multiple justices assembled in such a way that all Justices in the majority can agree, even though they might write various sections differently if they were the author. The language of the opinion often includes many compromises and as such no one Justice is willing to sign it as their own. Generally, when the Chief Justice is in the majority, the drafting of the per curiam opinion begins in his chambers, and it is then sent around to the others in the majority to suggest changes or additions.

Yes, Justice Barrett voted with the three liberal Justices in dissent. But she did not write her own opinion, and she only joined two segments of Justice Sotomayor’s very long dissent — 17 pages as compared to the 4 page per curiam opinion of the majority.

Justice Barrett joined in only Sections “II” and “III-B” — meaning she did not agree with the remainder of the dissent of Justice Sotomayor. Section II comprises only 2 paragraphs, and purports to set forth what all 9 Justices agreed upon as reflected by the Majority’s opinion.