Alito Fires Back at Sotomayor From the Bench After Asylum Ruling
The argument came down to a single word.
After the Supreme Court ruled 6-3 that asylum seekers blocked on the Mexican side of the border have not legally "arrived in the United States," Justice Sonia Sotomayor took the rare step of reading her dissent aloud from the bench. When she finished, Justice Samuel Alito fired back — something Supreme Court justices almost never do in open court.
What the Court Decided and Why the Word "In" Matters
The case is *Mullin v. Al Otro Lado*, No. 25-5, and its entire legal weight turns on the ordinary meaning of a preposition.
The Immigration and Nationality Act provides that any person who "arrives in the United States" may apply for asylum and must be inspected by an immigration officer.
For years, the central legal dispute was whether someone physically standing at the US-Mexico border, on the Mexican side, while being blocked by US customs officials, qualifies as someone who has "arrived in the United States."
According to the Supreme Court's majority opinion, authored by Alito and joined by Chief Justice Roberts, Thomas, Gorsuch, Kavanaugh and Barrett: they do not.
"An alien standing in Mexico does not 'arriv[e] in the United States' by attempting, and failing, to set foot in this country," Alito wrote. "An alien 'arrives in the United States' only when he crosses the border."
The decision overturned a Ninth Circuit ruling that had held the opposite — that a migrant arriving at the threshold of a port of entry, even while standing on Mexican soil, had legally arrived in the United States and was therefore entitled to be inspected and to apply for asylum.
The ruling gives the Trump administration the ability to revive the so-called "metering" policy — a CBP practice of telling asylum seekers at ports of entry that the facility was at capacity and directing them to wait in Mexico indefinitely.
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The History of Metering — and What It Actually Meant on the Ground
The metering policy did not begin under Trump.
It originated in November 2016, in the final weeks of the Obama administration, when DHS adopted the practice at the San Ysidro port of entry to manage a surge of Haitian migrants. The first Trump administration expanded and formalised it in 2018, applying it across all southern border ports. The Biden administration rescinded it in November 2021, shortly after a federal district court declared it unlawful.
The practical effect of metering was significant. When a port was deemed at capacity, officers told asylum seekers — without any organised tracking or appointment system — to wait in Mexico and return later. According to a CBP whistleblower's testimony cited in the majority opinion, officers were at times "instructed to lie to people" by telling them the port was at capacity when it was not.
Those turned away often spent weeks or months in northern Mexico, away from support networks and exposed to violence. Litigants in the case documented hundreds of cases of assault, kidnapping and murder of asylum seekers who were redirected back across the border under the policy.
Alito acknowledged those conditions in the majority opinion but characterised the policy as a manageable delay — not a permanent bar — and said concerns about a future total shutdown of asylum processing were hypothetical.
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What Sotomayor Said — and What Happened When She Said It
Sotomayor's dissent, joined by Justices Kagan and Jackson, ran to 35 pages. She chose to read it from the bench — a rare act that justices generally reserve for decisions they regard as gravely wrong.
Over approximately ten minutes, she argued that the majority's interpretation was driven almost entirely by fixation on a single word divorced from its statutory context.
"The majority ignores the statutory context and history, not to mention the longstanding position of the Executive Branch, all of which show that any noncitizen arriving at our doorstep and seeking admission must be inspected and allowed to apply for asylum, regardless of whether her foot has crossed the threshold," she said.
She invoked the 1939 voyage of the MS St. Louis — a ship carrying more than 900 Jewish refugees turned away from Cuba and the United States, most of whom later perished in the Holocaust — and drew a direct line from that history to the international treaties Congress subsequently codified as US law.
She called the majority opinion "egregiously wrong."
As Sotomayor read, according to SCOTUSblog's courtroom account, Alito leaned back in his chair, rocked back and forth, and at times appeared to close his eyes. When she used the phrase "egregiously wrong," he leaned forward, propped his chin in his hands and stared at the ceiling. Justice Kavanaugh stared directly at Sotomayor throughout. The other conservative justices looked down at their papers.
When she finished, Alito cleared his throat and spoke — not a prepared response, but an off-the-cuff retort from the bench.
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What Alito Actually Said
Alito said that had he known Sotomayor would read her dissent aloud in full, he would have added more to his own statement.
He then paraphrased the majority opinion's argument that the metering policy "merely delayed entry by some aliens as a way of improving a situation that both interfered with the proper conduct of inspection and created unsanitary, inhumane, and sometimes dangerous conditions at ports of entry."
He told those present to read the opinion and said, "I will move on to the next case."
The retort was described by CNN Supreme Court analyst Joan Biskupic as accusatory — Alito effectively suggesting Sotomayor had blindsided him by delivering the full oral dissent.
SCOTUSblog noted that Alito had in fact paused expectantly at the end of his own summary before Sotomayor began, suggesting he had known she planned to read from the bench. The exchange over whether he was truly surprised drew immediate attention from legal reporters in the press room.
The open disagreement capped what CNN described as an unusually tense final stretch of the court's term, with five major opinions still pending and ideological divisions increasingly visible in how justices conduct themselves in open court.
Key Takeaways
- The Supreme Court ruled 6-3 in *Mullin v. Al Otro Lado* on June 25, 2026 that asylum seekers physically blocked on the Mexican side of the US-Mexico border have not legally "arrived in the United States" under the INA — and therefore have no statutory right to apply for asylum or be inspected by an immigration officer.
- The ruling revives the metering policy, a CBP practice of turning away asylum seekers at capacity-deemed ports of entry, which began under Obama, was formalised under Trump's first term, and was rescinded under Biden in 2021.
- Justice Alito authored the majority opinion, joined by Roberts, Thomas, Gorsuch, Kavanaugh and Barrett. Sotomayor dissented, joined by Kagan and Jackson. Jackson filed a separate dissent.
- Sotomayor read her dissent aloud from the bench — invoking the 1939 MS St. Louis and calling the ruling "egregiously wrong."
- Alito responded off-the-cuff from the bench — a rare public retort to an oral dissent — suggesting he would have said more had he known Sotomayor planned to read her dissent in full.
- Five major Supreme Court opinions remain pending before the end of the current term.
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World News Correspondent
Rachel Hayes reports on international affairs, geopolitics, and breaking world news. Based in London, she covers stories shaping the UK and global political landscape.
