Justice Sonia Sotomayor issued a dissent that had the president talking about her in India and on Twitter. While a dissent has no legal weight, it sure can make waves. Justice Sotomayor lit into the Trump administration for seeking injunctive relief from the Supreme Court so often – and her colleagues for providing it. Donald Trump, on the other hand, thinks she and Ruth Bader Ginsburg should recuse themselves in cases involving the administration.
On Friday, the Supreme Court ruled for the administration, lifting a lower court injunction against it in Wolf v. Cook County. The government can resume the use of a public charge provision to deny immigration privileges to those likely to rely on welfare programs. The new rules require that an applicant’s negative qualities be weighed along with their positive ones. Negative factors include unemployment, dropping out of high school, not being fluent in English, and financial instability.
District Court Judge Feinerman, an Obama appointee, had ruled against the new immigration requirements. It might have taken years to implement the rule while the case worked its way through the judicial process. The Trump administration appealed to the Supreme Court, hoping to allow the new regulation while the courts figure out if it is permitted under the Constitution.
The Supreme Court ruled 5-4 along typical ideological lines to throw out the injunction and allow the administration to proceed as the case moves forward. Sotomayor wrote a dissent from this ruling, stating:
“It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”
Justice Sotomayor goes on to challenge the notion that the government has met its burden to have a stay granted. She lists many of the cases that have seen injunctions and stays sought and admonishes her colleagues that “to justify upending the normal rules of appellate procedure, a party must also show a likelihood of irreparable harm.” The good justice leaves out one pertinent fact in her upbraiding of the Court’s majority – the frequency that lower courts grant injunctions has accelerated rapidly during Trump’s administration. Justice Neil Gorsuch complained about that very trend in a nearly identical case, saying:
“The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw — they direct how the defendant must act toward persons who are not parties to the case.”
Donald Trump, for his part, tweeted his recusal demand:
….on all Trump, or Trump related, matters! While “elections have consequences”, I only ask for fairness, especially when it comes to decisions made by the United States Supreme Court!
— Donald J. Trump (@realDonaldTrump) February 25, 2020
He repeated the sentiment during a press conference in India as well.
Supreme Court Justices are responsible for recusing themselves. The likelihood that Justices Sotomayor or Ginsburg would remove themselves from ruling in administration cases is not serious. What is, however, is the attention both sides have now brought to the issue. Unless lower court judges start restricting their own enthusiasm for ruling against the Trump administration, it seems unlikely that the pace of these injunctions and stay requests will abate. Once again, the abandonment of norms and rules in a zeal to block Trump yields a result to his benefit.
Read more from Scott D. Cosenza.