Justice Sotomayor Criticizes Colleagues

2018 Roberts Court

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.”

High Court Lets Anti-Christian Ruling Stand

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The U.S. Supreme Court recently ruled on a profoundly significant case involving the religious rights of all Americans, and more specifically, the rights of our nation’s schoolchildren, which are safeguarded and secured by the all-important words contained in the First Amendment of the U.S. Constitution.

The High Court declined to review an appeal submitted on behalf of a public high school student and a Christian, Caleigh Wood, who refused to compromise her religious beliefs by participating in a class assignment that was overtly anti-Christian in nature.

What conflicted with young Caleigh’s deeply held tenets of faith was a Muslim conversion prayer, which was part and parcel of the curricular assignment of a required course.

“There is no god but Allah and Muhammad is the messenger of Allah.” This statement happens to be the Islamic conversion creed, i.e., the declaration that an individual professes when converting to the Islam faith. It is also the prayer that a practicing Muslim recites during the Muslim “call to prayer” practice.

Caleigh had enrolled in the above described course because it was a mandatory requirement that had to be completed before she would be allowed to graduate from high school.

In an attempt to abide by the school’s conditions with regard to the academic coursework and still not violate her own personal religious conscience, Caleigh offered to complete an alternative assignment.

However, the school refused to provide her any options that were non-violative of her Christian beliefs, despite the fact that the educational institution could have easily done so. Instead Caleigh was informed that if she did not participate in the Islamic conversion prayer she would be given a failing grade.

The eleventh-grade student was additionally compelled to view pro-Islamic material in the form of PowerPoint slides. One of the slides contained the following caption: “Most Muslim’s [sic] faith is stronger than the average Christian.” The lesson also included the following description regarding gender roles within the faith context: “Men are the managers of the affairs of women” and consequently “righteous women are therefore obedient.”

The approach taken within the class to the Christian faith stood in stark contrast with the one taken with regard to the Islamic faith. Islamic principles were presented under the auspices of “fact”; however, Christian principles were not afforded the same designation.

Regarding the comparison statement on strength of faith, Jack Tuttle, content specialist for the public schools in the county, testified that in his assessment the comparison reference was “inappropriate,” adding that he would have advised that it not be used in schools.

After Caleigh filed a lawsuit that pinpointed the violations of her Christian convictions, the Fourth Circuit Court of Appeals judge in the case proceeded to ignore legal precedent, essentially sanctioning the promotion of the religion of Islam in public schools.

However, requiring a student to say a prayer, whether contrary or not to a student’s personally held beliefs, is a blatant violation of constitutional principles and precedents.

The U.S. Supreme Court should have weighed in on the Fourth Circuit’s decision. In failing to do so, the High Court permitted a lower court to ignore precedent as well as a citizen’s concerns about having to recite a prayer of a different faith, and additionally having to write such, which was a clear violation of religious conscience. The presence of government coercion in this case is patently clear, since the religious activities in question were part of a required course and no alternative accommodations were provided.

The Fourth Circuit’s opinion flies in the face of the legal mandate that public schools must not disparage a student’s faith and/or require students to engage in prayer or religious exercises contrary to personally held religious convictions. Public schools are constitutionally bound to remain neutral in their approach to faith-related subjects.

The Supreme Court has historically provided greater constitutional protection with regard to freedom of conscience as it pertains to the nation’s younger demographic. This is partially due to the fact that public school attendance is statutorily compelled, and the school administration wields considerable power.

To this end, the U.S. Supreme Court has upheld the opening of legislative sessions with prayer, yet declared unconstitutional the opening of school sessions with prayer. Similarly, the High Court has upheld the legality of creche and menorah displays, while noting that it would be a different result if the displays arose in a school setting.

The High Court precedent requires lower courts to apply a heightened standard for coercion in the public school context. Unfortunately, the Fourth Circuit egregiously cast this heightened standard aside.

The refusal by the U.S. Supreme Court to take up Caleigh’s case not only allows the lower court ruling to stand, but it leaves the existing double standard in place, which is likely to wreak further havoc on our cherished First Amendment.