Supreme Court says Alito’s verbal reaction to Sotomayor was based on a ‘misunderstanding’

By John Fritze, CNN

(CNN) — The highly unusual exchange between Justice Samuel Alito and Justice Sonia Sotomayor over a dissent read from the bench was based on a “misunderstanding” by the conservative justice, the Supreme Court said Friday.

“Justice Alito was notified in advance by Justice Sotomayor’s chambers that she would be reading a dissent from the bench,” the court spokesperson said in a statement in response to questions from CNN.

“It was a misunderstanding on Justice Alito’s part,” the spokesperson added.

The rare statement came a day after a tense back-and-forth between the two justices when Sotomayor, the court’s senior liberal, publicly read a dissent in a case involving asylum claims. Alito, a conservative who was then set to summarize the next opinion, appeared taken aback by his colleague’s remarks.

“There’s much that I would have added to my bench statement had I known there would be a dissent read,” Alito said, an unusual break from protocol during what is normally a highly choregraphed release of opinions.

Alito, who authored three of the four opinions released Thursday, suggested at the time that he didn’t realize Sotomayor would read her dissent verbally. Verbal dissents are rare and usually underscore a justice’s strong disagreement with the majority’s opinion.

The back-and-forth came amid signs of strife behind the curtain of the high court as it veers toward its final days of the current term juggling a number of cases involving President Donald Trump and culture war issues. The Alito-Sotomayor exchange came in a case dealing with a policy of turning asylum seekers away at the border, which the conservative majority approved in a 6-3 decision.

The court is set to hand down additional opinions on Monday and is likely to wrap up its term next week.

Earlier this year, it was Sotomayor who had to explain her words. The justice issued an unusual public apology in April after she criticized Justice Brett Kavanaugh for his writing in another immigration case.

Sotomayor’s apology followed remarks she made in Kansas in which she criticized Kavanaugh for his concurring opinion in a high-profile emergency immigration case dealing with ICE patrols.

“I regret my hurtful comments,” Sotomayor said at the time. “I have apologized to my colleague.”

Thursday’s Supreme Court case at issue dealt with a policy called “metering” in which federal agents stationed at the border turn back asylum seekers before they ever step foot on US soil, frustrating their ability to be formally inspected by officials — the first step in a process that could eventually result in them being granted asylum.

The policy was first used during President Barack Obama’s administration but was formalized during Trump’s first term. It is currently not in use. The Supreme Court ruled that, in order to claim asylum, a foreign national must have their feet on US soil.

After Alito quickly summarized his opinion for the court (Alito is often quite brief in his summaries), Sotomayor read a lengthy oral dissent that among other things called attention to the infamous episode of the US turning away a ship of Jewish refugees fleeing Nazi Germany in the 1930s. Hundreds of those refugees were later killed in the Holocaust.

After Sotomayor’s presentation, Alito was set to explain the next opinion. Instead, he continued briefly to discuss the asylum case, noting that it had been used by both a Democratic and Republican administration. He also described the policy at issue in the case as “orderly and humane.”

This story has been updated with additional details.

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