As of 2016, only about 10 percent of detainees were held in federal facilities at all; the remainder were housed in state, county, or city jails (25 percent) or private for-profit prisons (65 percent). Each of the local or private facilities is governed by an agreement with ICE governing inmate conditions, and the agreements aren’t uniform. Some require better conditions than others. Even ICE’s defenders do not seriously contest that ERO detention facilities are rife with poor physical conditions, inadequate medical care, and physical and sexual abuse of the inmates.

The inmates in the archipelago’s exploding prison population are, almost without exception, not charged with or awaiting trial for any crime at all. Some have committed crimes and completed their sentences; some have entered the U.S. without permission; others have done nothing wrong except request admission to the United States under our laws when Customs and Border Protection Officers believe they are not entitled to do so.

These facts are the backdrop to Jennings v. Rodriguez, an important immigration case decided by the Supreme Court last week. There were two issues in Jennings. The first was whether the Immigration and Nationality Act, which governs ERO’s detention of aliens, required that those being held receive a regular chance at release on bail. The second was whether the Act, if it did not allow a chance for bail, violates the Fifth Amendment’s guarantee of due process.

By a 5 to 3 majority, the Court gave a troubling answer to the two questions. First, the majority said the statute doesn’t permit regular bail hearings; second, it refused to even consider the constitutional issue. Instead, the Court sent the case back to the Ninth Circuit for a first crack at that—but hinted strongly that the appeals court should find a reason to dismiss the case rather than decide it.

No matter how you analyze the issues, Jennings was a hard case under both the statute and the Constitution. And, as Kevin Johnson, the immigration maven and dean University of California at Davis law school, said in SCOTUSblog, last week’s decision doesn’t end the case. But the Court’s five-justice majority sent some fairly grim signals about their view of the ERO archipelago and the rule of law.

Justices Samuel Alito, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch, read the statute as forbidding bail hearings for the immigration inmates, and thus authorizing ERO to detain them for weeks, months, or even years. Two of the five, Thomas and Gorsuch, wrote separately to suggest that the inmates should not be allowed to challenge their detention in court until after their cases are complete and they are facing deportation. The five-justice majority opinion, without quite saying so, also suggested that the constitutional issue is really not of much importance at all. Justice Stephen Breyer wrote a dissent, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. (Justice Elena Kagan recused herself, because she had authorized a pleading in the case when she was U.S. Solicitor General.)