Issues scathing dissent

Sotomayor issues scathing dissent in Supreme Court order that could reshape legal immigration

By Ariane de Vogue

Justice Sonia Sotomayor wrote a scathing dissent late Friday night, castigating the government for repeatedly asking the Supreme Court on an emergency basis to allow controversial policies to go into effect and charging her conservative colleagues on the court with being too eager to side with the Trump administration on such requests.

The justice wrote that granting emergency applications often upends "the normal appellate process" while "putting a thumb on the scale in favor of the party that won." Targeting her conservative colleagues, she said "most troublingly, the Court's recent behavior" has benefited "one litigant over all others."

Sotomayor's dissent was in response to the court's 5-4 order granting the government's request to allow its controversial "public charge" rule to go into effect in every state. The rule makes it more difficult for immigrants to obtain legal status if they use public benefits like food stamps and housing vouchers. Although the three other liberal justices on the bench also dissented, they remained silent and did not join Sotomayor's decision.

"Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases," Sotomayor said. "It is hard to say what is more troubling," she said, pointing to the case at hand, "that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it." She noted that in the case at hand, the lower court order that the Supreme Court lifted was narrow and only impacted one state.

Sotomayor's comments come as the Supreme Court is in the midst of a blockbuster term considering issues such as abortion, LGBTQ rights, the Second Amendment, immigration and President Donald Trump's effort to shield his financial records. The justices are behind schedule in releasing opinions, and court watchers have questioned if the delay is caused in part by Chief Justice John Roberts' required participation in the impeachment proceedings, or if the justices themselves are fractured over a number of cases. Although Sotomayor wrote alone, her opinion suggests unease behind the scenes.

For its part, the government, supported by at least two conservative justices, has argued in the past that emergency requests have become necessary because lower courts are increasingly issuing broad preliminary injunctions that cover states that weren't a party to the original lawsuit.

On the one hand, Sotomayor says that the court is lowering its standards when considering emergency requests from the government. On the other hand, the Trump administration counters that such requests are necessary because lower courts are issuing overly broad preliminary opinions, prematurely blocking its policies while the appeals process plays out.

Friday's order came after the Supreme Court last month, again dividing 5-4, allowed the "public charge" rule to go into effect across the country -- except for Illinois -- because the state was governed by a separate judicial order.

The Trump administration took the next step of asking the court to lift the Illinois order. That request was granted Friday.

Now the public charge rule, scheduled for implementation Monday -- will take effect nationwide while the legal process plays out.

"This final rule will protect hardworking American taxpayers, safeguard welfare programs for truly needy Americans, reduce the Federal deficit, and re-establish the fundamental legal principle that newcomers to our society should be financially self-reliant and not dependent on the largess(e) of United States taxpayers," the White House said in a statement Saturday.

Addressing more than the case at hand, Sotomayor wrote about what she called a "now-familiar pattern."

"The government seeks emergency relief from this Court," asking the justices to step in when lower courts have declined to do so, and then the Court "has been all too quick to grant the government's reflexive requests."

"Make no mistake," Sotomayor said, "this Court is partly to blame for the breakdown in the appellate process."

She lamented the fact that the court has at times denied similar emergency requests from death row inmates.

"The Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures to 'raise any potentially meritorious claims in a timely manner,' " she said.

"I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect," she said.

Professor Steve Vladeck, a CNN contributor who has studied the issue of emergency requests, noted in a recent piece for the Harvard Law Review that Solicitor General Noel Francisco has been more aggressive in seeking to "short-circuit" the ordinary course of appellate litigation than his immediate predecessors.

In an interview, Vladeck noted that Francisco has not always prevailed, "but he has done so far more often than his predecessors."

"This is now the 24th time that the Trump administration has asked the Supreme Court to put a lower court decision on hold in less than three years compared to a total of eight such requests during the 16 years of the George W. Bush and Obama administration's combined," Vladeck said.
"As in this case, the justices have often agreed to these requests even when the lower court ruling, as in the most recent case, had only a local impact," he added.

But the government has complained there has been an uptick of orders by lower courts blocking Trump policies nationwide. In late January, for example, when the court allowed the public charge rule to go into effect for every state except Illinois, Justice Neil Gorsuch joined by Justice Clarence Thomas voted in the majority and wrote separately to criticize the fact that the lower court had issued such a broad injunction impacting those who weren't plaintiffs in the case.

Gorsuch criticized the "increasingly common practice" of trial courts issuing broad orders blocking a policy.

"The routine issuance of universal injunctions is patently unworkable," Gorsuch wrote.

Last May, Attorney General William Barr complained at a speech to the American Law Institute, about nationwide injunctions, particularly how they have blocked his administration from terminating DACA, an issue that is currently before the Supreme Court.

He said that nationwide injunctions have "frustrated presidential policy for most of the President's term with no end in sight." He said we are "more than halfway through the President's term, and the administration has not been able to rescind the signature immigration initiative of the last administration, even thought it rests entirely on executive discretion."

He said such injunctions "have injected the courts into the political process" and inspired "unhealthy litigation tactics." He noted that after the courts had blocked the travel ban, the Supreme Court ultimately allowed the third version to go into effect.

"Limiting judicial power to resolving concrete disputes between parties, rather than conducting general oversight of the Political Branches, ensures that courts do not usurp their policymaking functions," Barr said.