When U.S. Supreme Court Justice Stephen Breyer began to read from his dissent in a key immigration case Tuesday, he warned that his recitation would be long, but said the principles were clear.

Breyer went on to criticize the court's majority decision in Jennings v. Rodriguez that detained aliens do not have a right to periodic bail hearings. Citing the Declaration of Independence and Blackstone, among other sources, he asserted that confined aliens in this country have a basic right of due process to seek bail.

In his 33-page written dissent, Breyer accused the Justice Department of embracing the “legal fiction” that constitutional due process protections don't apply to asylum seekers or other arriving aliens “because the law treats arriving aliens as if they had never entered the United States; hence they are not held within its territory. This last-mentioned statement is, of course, false.”  

Justices Ruth Bader Ginsburg and Sonia Sotomayor joined Breyer's dissent. A splintered majority agreed with different parts of the decision written by Justice Samuel Alito Jr. (left), overturning a 2015 ruling by the U.S. Court of Appeals for the Ninth Circuit. Justice Elena Kagan was recused, probably because of her prior role as U.S. solicitor general.

The American Bar Association filed a brief in support of aliens in the case, asserting that “procedural safeguards are … critical where, as here, immigrants are awaiting a civil proceeding … to determine whether or not they may be removed from this country.”

It was the 20th time Breyer read a dissent from the bench since joining the court in 1994, according to a scholarly tally—less than once a year, but in recent years his dissents have been more frequent.

Oral dissents are rare, but when it does occur, it follows a long tradition of justices signaling their discontent with what the majority has done, and hoping that their dissent will plant a seed for future reconsideration.

Some oral dissents, such as those by the late Justice Antonin Scalia, are angry or sarcastic or both, making it hard to imagine how he and the author of the majority opinion could get along the next day. “No one I know has been as vituperative as Scalia,” court scholar Mel Urofsky said in 2015, discussing his book ”Dissent and the Supreme Court.”

Breyer usually has a more mournful tone when he reads from his dissents, conveying disappointment more than anger in the court's ruling.

“Justice Breyer only rarely reads dissents from the bench, and does so only when he feels strongly about a case,” said Hogan Lovells partner Neal Katyal, a former law clerk to Breyer. “While you will hear his strong views about the merits of a case, Justice Breyer even in spoken dissent is deeply respectful of his colleagues.”

In fact, Breyer ended his Jennings dissent this way: “With respect, I dissent.”