In a recent dissent to a Supreme Court decision, Associate Justice Sonia Sotomayor crossed the bounds of judicial norms by accusing her fellow Supreme Court colleagues of being biased toward the Trump administration in carrying out their judicial work.
The case before the High Court, Wolf v. Cook County, deals with circumstances in which the government could deny visas or green cards to non-citizens who are looking to enter the United States.
In 2019 the Trump administration, via the Department of Homeland Security, issued a new rule to be used for the purposes of determining whether an individual could be granted legal entry into the United States.
The executive branch already had the authority to determine whether an individual who applies to enter the country is likely to become a “public charge,” i.e., a person “primarily dependent on the government for subsistence.”
However, certain non-cash financial aid items, such as food stamps, housing, and health care assistance, were not previously taken into account for such purposes, but were included under the new Trump administration rule.
Prior to hearing this case, the High Court had blocked two nationwide injunctions that were issued by lower courts, resulting in the enforcement of the new rule. However, a third injunction, which was limited only to Illinois, remained in effect, barring the implementation of the new rule in that state.
The Trump administration filed an application with the High Court for an emergency stay, which requested that the Justices block the Illinois injunction that allowed Illinois to continue to exclude non-cash financial aid items from being a part of the dependency assessment.
The High Court’s decision to halt the Illinois injunction and allow the state to consider non-cash financial aid thus enabled federal authorities to enforce the new policy in Illinois.
In her dissent, Justice Sotomayor enlisted a highly unusual comparison to bolster her argument against the majority’s approach to the government’s stay applications. Drawing similarities to arguments brought by those advocating for death row inmates, Justice Sotomayor accused fellow members of the High Court of showing greater concern for President Donald Trump than for convicts facing execution.
In an apparent incrimination of five of her fellow colleagues, Justice Sotomayor alleged that they had politicized their rulings.
Justice Sotomayor had voted in the subject case, Wolf v. Cook County, along with three Democrat-appointed Justices, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.
As a Member of the Bar of the Supreme Court, I have had the privilege of having dozens of cases come before the High Court and found it disconcerting to read that Justice Sotomayor had written that the five Republican-appointed Justices were “putting a thumb on the scale in favor” of the Trump administration.
There is an unspoken yet palpable expectation that political opinion as it may potentially relate to a judicial ruling would be conspicuously left behind at the courthouse steps.
In addition, Justice Sotomayor was highly critical of the frequency of the relief from the High Court, in the form of stays against injunctions, which had been sought by the Trump administration.
“Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited Court resources in each,” Justice Sotomayor wrote. She went on to assert that the High Court is biased in favor of the Trump administration when it comes to these stay applications.
The notion asserted by Justice Sotomayor that the Republican-appointed justices on the High Court are politically biased does not appear to square with the records of Chief Justice John Roberts and Justices Brett Kavanaugh and Neil Gorsuch.
In 2012, Chief Justice Roberts, who was appointed by President George W. Bush, wrote the majority decision in favor of the Affordable Care Act, which was a clear departure from conservative ideology. And Justices Kavanaugh and Gorsuch, both of whom were appointed by President Trump, have sided at times with the four Democrat-appointed justices in relation to several cases.
In her recent writing, Justice Sotomayor appears not to have taken into account the reason for the larger number of stay applications. The increase is due to the unprecedented use of the federal courts by opponents of the president.
In 2019, during a speech to the American Law Institute, Attorney General William Barr cited the widespread use during President Trump’s term of nationwide injunctions that affect presidential policies.
The numbers correspond with the misuse of the judiciary in an unparalleled way. During the entire 20th century, courts issued just 27 nationwide injunctions of this type; however, in the three short years that President Trump has occupied the Oval Office, activist judges have attempted to hamper his administration with 40 nationwide injunctions.
“When a nationwide injunction constrains a significant executive policy, the Justice Department has little choice but to seek emergency relief,” Attorney General Barr noted. “… the alternative is for the government to wait months or years for appeals to run their course before the executive may implement its policy at all.”