We will possibly get a bad ruling, and then we’ll get another bad ruling and then we’ll end up in the Supreme Court … and we’ll win in the Supreme Court. — Donald Trump
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. — Sonia M. Sotomayor
In November 2018, Chief Justice John G. Roberts Jr. chastised President Trump’s personal attacks on jurists he dubbed “Obama Judges.” Roberts countered in a statement released by the court’s public information office: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said, “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Roberts concluded that an “independent judiciary is something we should all be thankful for.”
Last Friday evening, the U.S. Supreme Court in yet another 5-4 decision, stayed a lower court injunction over the new “wealth test” for immigrants, which allowed the Trump administration’s test to take effect in Illinois. The case is Wolf v. Cook County, Illinois, et al., 2020 WL 858799.
In Wolf, the court offered no opinion, no legal analysis or rationale. Justice Sonia M. Sotomayor, however, offered a full-throated dissent in which she flatly questioned the court’s independence, criticizing its bias in favor of the Trump administration. She decried the court’s reflexive preference in stay applications to “one litigant over all others.”
Sotomayor characterizes the government as “claiming” emergencies, “demanding immediate attention” and doing so with increasingly hollow “cries of urgency.”
The alleged urgency is the government’s wish to slog through the lower courts even though such process ensures that by the time the cases reaches the high court the complex, constitutional issues have been fully vetted by several jurists.
The court had just granted a stay for the Department of Homeland Security wherein the government focused almost solely on the relief granted by the lower court of a nationwide injunction.
Sotomayor noted that the administration’s “own definition of irreparable harm has shifted” after it secured another stay in the N.Y. cases brought by a woman who has accused Trump of sexual assault: “Having first sought a stay in the New York cases based, in large part, on the purported harm created by a nationwide injunction, it now disclaims that rationale and insists that the harm is its temporary inability to enforce its goals in one state.…”
In Wolf, both the U.S. District Court and the 7th U.S. Circuit Court of Appeals declined to stay enforcement of a narrowly tailored, Illinois statewide injunction. The 7th Circuit denied stay of the injunction but ordered an expedited briefing schedule and oral argument was scheduled, as of this writing, on Wednesday.
Sotomayor argues that the government was not held to its burden of demonstrating the likelihood of suffering “irreparable harm” warranting such “extraordinary relief.” Id., citing Williams v. Zbaraz, 442 U.S. 1309, 1316 (1979) and Packwood v. Senate Select Committee On Ethics, 510 U.S. 1319, 1320 (1994).
The court’s position now appears to be that whether this administration is attempting to enforce a policy in all 50 states or in one single state, such difficulties amount to “irreparable harm” without further argument or evidence.
The court’s unstated rationale appears to be that without such favorable rulings the government could not immediately do what it wants, when it wants, anywhere it wants.
The government’s only evident burden was to continue to enforce an interpretation of an immigration rule that it has enforced for the last 20 years. The Supreme Court rubber-stamped emergency relief denied by the two lower courts considering the merits of the case.
Not surprisingly, Trump has just weighed in ahead of the government’s legal team with a Twitter version of a motion for recusal of Justice Ruth Bader Ginsburg and Sotomayor, the latter being targeted for her dissent and for not standing up for him against Ginsburg. In sum, Sotomayor did not demonstrate loyalty.
“‘Sotomayor accuses GOP appointed [j]ustices of being biased in favor of Trump,’” Trump tweeted, quoting Laura Ingraham of Fox News. “This is a terrible thing to say. Trying to ‘shame’ some into voting her way? She never criticized Justice Ginsburg when she called me a ‘faker.’ Both should recuse themselves on all Trump or Trump-related, matters!”
Thus far, the government has not attempted some sort of motion for an order of permanent recusal for all “Obama and Clinton judges” on all government matters involving the Trump administration. Trump wishes to punish all dissent, whether from private persons or on the Supreme Court.
As Justice Robert H. Jackson reminded us in his thundering opinion in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.…”
The administration has argued that Trump is the “embodi[ment of] the Executive Branch” and went on to confuse and conflate the person of the president with his office at all times, even when he is acting as a private person for his personal or pecuniary interests.
Government lawyers have actually been making the argument in federal court that Trump’s boast that he can shoot someone on Fifth Avenue without any legal recourse but impeachment is an accurate statement of the law.
Thus far, however, the argument that the president enjoys absolute immunity from criminal prosecution, civil process and even congressional investigation has not impressed either the federal or state court judiciary:
“[D]efendant is not exempt from state court jurisdiction solely because of his identity as commander-in-chief (see Clinton v. Jones, 520 US 695 [“(I)mmunities are grounded in nature of the function performed, not the identity of the actor who performed it”] [internal quotation marks omitted]). Therefore, the [s]upremacy [c]lause does not provide blanket immunity to the [p]resident from having to defend against a civil damages action against him in state court.” Zervos v. Trump, 171 A.D.3d 110, 120ff. (2019)).
The supremacy clause confers “supreme” status on federal laws; it does not confer the title of Supreme Being on a federal official for illegal, unofficial acts. Id., See also Haywood v. Drown, 556 US 729, 751-752 (2009). Although he may be “tasked with significant responsibilities, the [p]resident is still a person, and he is not above the law.” Id. Nonetheless, Trump continues to talk about himself as the state in all he says and does, whether official or personal, public or secret, legal or illegal.
Toward the end of her dissent, Sotomayor juxtaposes the court’s obsequiousness toward the administration with the Supreme Court’s refusal to stay unconstitutional executions — where the inarguable “irreparable harm” is death itself.
Her dissent uncovers the high court’s own wealth-power test wherein it refuses to listen to the most impoverished among us, but in Sotomayor’s terms, rushes to “bend over backwards” for this administration.
Roberts was right to respond to the administration’s attempt to bring its acute form of virulent tribalism to the federal bench. But myriad 5-4 decisions overturning lower court resistance to the administration’s attempts to sidestep the entire appellate procedure upon routine application by the executive, challenges Roberts’ characterization of the high court’s independence as something little more than aspirational.
In what Sotomayor recounted with stark candor as “the new normal,” when this administration pushes, “the [c]ourt yields.”