The justices of the U.S. Supreme Court gather for a formal group portrait to include the new Associate Justice, top row, far right, at the Supreme Court Building in Washington, Friday, Nov. 30, 2018. Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh. (AP Photo/J. Scott Applewhite)
Remember when Justice Roberts got really mad at President Trump for daring to suggest that “Obama judges” exist? Yeah, about that.
Justice Sotomayor, perhaps the most partisan appointment to the court in several decades, has decided to come out and accuse her conservative colleagues on the nation’s highest court of being stooges for the Trump administration. This is the kind of criticism (i.e. accusations of doing political bidding) that have mostly been off limits in the past.
Justice Sotomayor is warning us.
If Trump wins, the Supreme Court and the federal bench will be lost for decades.
And all of your progressive plans on jobs, health care, education, immigration or criminal justice reform will be struck down by the courts.https://t.co/ULR1B5Mvcd
— Keith Boykin (@keithboykin) February 22, 2020
Here’s a report from Slate (obviously supportive) on Sotomayor’s dissent. It revolves around the public charge issue in dealing with new immigration.
“But this application is perhaps even more concerning than past ones,” Sotomayor continued. Previously, the DOJ “professed urgency because of the form of relief granted in the prior case—a nationwide injunction.” Now there’s no nationwide injunction, so there’s no apparent “urgency.” The DOJ “cannot state with precision any of the supposed harm that would come from the Illinois-specific injunction, and the Court of Appeals for the Seventh Circuit has scheduled oral argument for next week.” Yet SCOTUS lifted the injunction anyway. “It is hard,” Sotomayor wrote, “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.”
Normally, “to justify upending the normal rules,” the government “must also show a likelihood of irreparable harm.” And “it has not made that showing here.” But this shortcut to SCOTUS has become “the new normal”; it has happened over and over and over again, as the DOJ leapfrogs over the lower courts to seize a victory at the Supreme Court.
Sotomayor has long been an activist. Just recently, she proclaimed that the “gender pay gap” is one of the biggest issues facing the country (in reality, any gaps in pay are due to differences in circumstances, not discrimination). What exactly that has to do with being a Justice on the Supreme Court is an open question, but it’s one in a litany of examples of Sotomayor playing politician throughout the years.
But don’t you dare call her an Obama judge.
But the Supreme Court’s conservatives repeatedly accept the DOJ’s declarations of an “emergency,” giving Donald Trump whatever he wants.
This practice, Sotomayor wrote, has “benefited one litigant over all others”: the Trump administration. And the injustice of this favoritism is especially painful in light of the court’s recent refusal to halt unconstitutional executions. “This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed,” Sotomayor noted, blaming death row inmates for their ostensible failure “to raise any potentially meritorious claims in a timely manner.”
Let me help the Justice out. The reason that the conservatives on the court are hearing these cases is because there has been rampant abuse in the lower courts of injunctions. Whether it’s making them nationwide when they clearly don’t have the authority to do so, or providing explanations that don’t even begin to pass any legal standard, judges have been at war with the Trump administration for political reasons since the moment he took office.
Instead of continuing to allow it, the conservatives on the court have decided enough is enough. They are hearing these cases in an expedited manner and ruling on them based on their constitutional merits. That obviously offends Sotomayor, who instead chooses to often rule based on emotionally charged, partisan arguments. In the case of the “wealth test” she’s decrying, the President obviously has the constitutional authority to vet immigrants for public charge. If the Congress doesn’t like that, they can pass new laws that limit the President’s wide latitude over our immigration system. What doesn’t get to happen is un-elected judges arbitrarily deciding something is unconstitutionally based on clearly political grounds.
Further, Sotomayor gives no logical explanation for why it is somehow wrong to hear these cases in a timely manner. A case, whether it’s heard today or two years from now, has to be decided. If it’s decided today, that’s certainly preferable to it languishing in limbo, is it not? But being who she is, Sotomayor is obviously in favor of the judicial activism that has taken place, i.e. attempting to stall out constitutional actions simply because Trump took them.
This is yet another example of why it’s so important for Trump to win in November. The Supreme Court is still hanging on a knife’s edge and it needs to be solidified with traditionalists who take their jobs seriously. Sotomayor is not one of those people.