After conservative majority stays lower court injunction against the “public charge” immigration rule, Sotomayor lashes out: “the Court’s recent behavior on stay applications has benefited one litigant over all others”
The lower federal courts repeatedly have had their orders and injunctions against Trump administration programs halted by the Supreme Court. In the travel cases, multiple stays were issued and when the case finally reached the Supreme Court on the merits, Trump won.
This is not a matter of pro-Trump bias, but of out-of-control lower courts, particularly at the District Court level, where judges have overstepped their bounds to substitute judicial preferences for those of the executive branch in which the constitution vests matters related to entry into the country, among other things.
This natural conflict between the executive and judicial branches has been exacerbated by forum shopping by anti-Trump activists, who keep filing cases until they find a judge who will issue a nationwide injunction. That’s how it worked in the travel cases, where Trump won in the District of Massachusetts, but lost elsewhere — because at least one judge was willing to issue a nationwide injunction, it didn’t matter how many times Trump won with other judges. #TheResistance to Trump only needed to win once, Trump needed to win every time in the District Courts.
The Supreme Court appears ready, at long last, to address the abuse at the District Court level, particularly as to nationwide injunctions. The Court recently stayed a lower court nationwide innjuction against implementation of the so-called “public charge” rule, which required immigrants to demonstrate that they would not become financial wards of the state. That stay remains in effect until the merits of the case are considered by the court of appeal and, eventually, the Supreme Court.
The Supreme Court on Friday, February 20, 2021, again considered a District Court injunction against the “public charge” rule, this time in the District of Illinois. This time, however, the District Court did not issue a nationwide injunction, just an injunction applicable in Illinois. Nonetheless, in Wolf v. Cook County, the Supreme Court issued a stay, with all liberal Justices opposing the stay:
The application for stay presented to JUSTICE KAVANAUGH and by him referred to the Court is granted, and the District Court’s October 14, 2019 order granting a preliminary injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Seventh Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN would deny the application.
Justice Sotomayor, who increasingly is known for her aggressive dissents, issued a dissenting opinion which accused the conservative majority of bias in favor of one party. While she didn’t say “Trump,” in the context of the accusation, it’s clear that’s to whom she was referring. Here’s an excerpt (emphasis added):
Today’s decision follows a now-familiar pattern. The Government seeks emergency relief from this Court, asking it to grant a stay where two lower courts have not. The Government insists—even though review in a court of appeals is imminent—that it will suffer irreparable harm if this Court does not grant a stay. And the Court yields.
But this application is perhaps even more concerning than past ones. Just weeks ago, this Court granted a stay of a different decision involving the same administrative rule at issue here, after the Government professed urgency because of the form of relief granted in the prior case—a nationwide injunction. The Government now uses that stay—of a nationwide injunction—to insist that it is entitled to one here. But the injunction in this case is limited to one State, Illinois. The Government 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. The Government’s professed harm, therefore, boils down to an inability to enforce its immigration goals, possibly in only the immediate term, in one of 50 States. 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….
… this Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. Ibid. But make no mistake: Such a shift in the Court’s own behavior comes at a cost….
Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others…. Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances— where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.
Sotomayor’s assertion that a single-state injunction differs fundamentally from a nationwide injunction makes no sense in the immigration context — it would require the federal government to apply one rule in Illinois and a different rule elsewhere, something that is untenable in the immigration context.
I don’t think I’m misreading Sotomayor’s dissent as accusing the conservative majority of pro-Trump bias. Certainly, that’s the way liberal media is reading it.
The increasingly bitter dispute in the Supreme Court over reining in district court political inteference is a reminder, the Supreme Court matters, and so do elections.DONATE
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