I’m inclined to agree with Andy McCarthy that the Supreme Court’s 7–2 majority, in its decision late Friday in A.A.R.P. v. Trump, was right to be concerned about the behavior of the Trump administration and Pam Bondi’s Justice Department, and that the majority had the better of several of the arguments with Justice Samuel Alito’s dissent. The Court had jurisdiction to act to ensure that due process was properly respected in deportations justified under the Alien Enemies Act, and the awkward timing and procedural posture of the case were due in good part to the administration and DOJ having already burned a lot of their credibility with the courts.

All of that said, the Court was unduly high-handed in its dismissal of Alito’s objections to granting relief as if this case were a proper class action. The theory of the case is that the named plaintiffs, listed only by their initials A.A.R.P. (not the American Association of Retired Persons) and W.M.M., can represent all Venezuelans targeted for deportation under the Alien Enemies Act, seeking . . . well, what? Both have already brought habeas petitions seeking to prevent deportation. As Alito’s dissent pointed out, it is deeply questionable whether habeas relief can be granted on a class-wide basis. Pretty much by definition, any habeas challenge to an individual’s designation as an alien enemy is fact-specific, and thus not suitable for a class action. Even the common legal issue of the proper application of the AEA (recently decided against the government in another case) is arguably a disguised habeas case, which must be brought on behalf of an individual, not a class.

By contrast, what the plaintiffs now say they want is notice before deportation so they can bring a habeas case. But both of the named plaintiffs have already filed one, so they wouldn’t satisfy the requirements for a class action, as their claims are typical of a class of people who have received no notice and filed no habeas case. It’s true, as the majority notes, that a defendant cannot “pick off” class representatives by treating them differently than the rest of the class, but these plaintiffs were already differently situated when they filed suit. Even assuming that (as the majority says, citing only an offhand remark in a treatise) “courts may issue temporary relief to a putative class,” there ought to be at least some reason to believe that the class is likely to succeed on the merits not only of its claims but on class certification before issuing such relief. Even if a district court need not conduct the full, often fact-bound “rigorous analysis” that Rule 23 of the Federal Rules of Civil Procedure requires for class certification before issuing preliminary relief, courts need to make their best assessment on the basis of the record in front of them.

It’s important for the Court to move swiftly to supervise both the district courts and the executive branch in the current multi-front war of injunctions. But it needs to do so more carefully.