Saturday evening, I published three posts on A.A.R.P. v. Trump. Around midnight eastern time, Justice Alito issued his dissent, which was joined only by Justice Thomas. The dissent begins: "Shortly after midnight yesterday, the Court hastily and prematurely granted unprecedented emergency relief." He is correct.
Justice Alito lists seven bullets which demonstrates why this order was problematic. The first bullet argues that it is unclear the Court had jurisdiction:
It is not clear that the Court had jurisdiction. The All Writs Act does not provide an independent grant of jurisdiction. See 28 U. S. C. §1651(a) (permitting writs "necessary or appropriate in aid of " a court's jurisdiction); Clinton v. Goldsmith, 526 U. S. 529, 534–535 (1999) ("the express terms" of the All Writs Act "confine the power of [a court] to issuing process' in aid of ' its existing statutory jurisdiction; the Act does not enlarge that jurisdiction" (quoting §1651(a)). Therefore, this Court had jurisdiction only if the Court of Appeals had jurisdiction of the applicants' appeal, see §1254 (granting this Court jurisdiction to review "[c]ases in the courts of appeals"), and the Court of Appeals had jurisdiction only if the supposed order that the applicants appealed amounted to the denial of a preliminary injunction. See §1292(a)(1).
