Justices’ Dissents Inform

In several previous posts, VoxFairfax has called reader attention to Supreme Court dissents as opinions containing legal reasoning that may eventually become the majority. One recent dissent by Justice Sonia Sotomayor, however, reflected the sharp divide in judicial ideologies that mirrors the nation’s deepening political schism.

In its unrelenting effort to control immigration, the Trump administration had announced that immigrants would be required to demonstrate sufficient financial ability to ensure that they would not become public charges, i.e., a wealth test. It should be noted that current immigration rules provide that applicants for entry who demonstrate financial resources between $500,000 and one million dollars, along with a commitment to create ten full-time jobs, may be offered permanent residency. The new rule would deny entry to any who may require some public assistance. This effectively destroys most refugee resettlement programs conducted by nongovernmental organizations in cooperation with local jurisdictions.

Lower courts had issued injunctions blocking the rule, deciding that it contravened existing federal law, but the conservative Supreme Court majority determined otherwise. Interestingly, the majority did not address the lower court rationale for the injunctions. Rather, it appears that the majority was unhappy with the nationwide scope of the lower court ruling, complaining about “the rise of nationwide injunctions” in a concurrence by Justices Gorsuch and Thomas. The 5-4 vote was marked by Sotomayor’s pointed dissent. Excerpted below are portions of the Slate article reporting on it (https://slate.com/news-and-politics/2020/02/sotomayor-trump-wealth-test-bias-dissent.html):

“Today’s decision follows a now-familiar pattern,” Sotomayor began. “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.”

“Today’s decision follows a now-familiar pattern,” Sotomayor began. “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.” In other words, SCOTUS rewarded the Department of Justice for short-circuiting the appellate process and demanding immediate relief.

Trump’s wealth test marks a brazen attempt to limit legal immigration by forcing immigrants to prove their financial status to enter, or remain in, the United States. It goes far beyond any statute passed by Congress, forcing immigrants to demonstrate that they will be not a “public charge”—that is, they won’t rely on any public assistance, including Medicaid, housing vouchers, and food stamps. Because the policy departs so dramatically from federal law, several courts blocked its implementation in 2019.

Gorsuch’s opinion raised the possibility that the conservative justices disapproved of the scope of the district court’s injunction, not the reasoning behind it. If that were true, the conservatives should not have unsettled a narrower injunction limited to Illinois. But they did just that, once again without explaining themselves. Once again, the liberals dissented, but only Sotomayor wrote separately.    

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. “

“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 explained:

“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. And with each successive application, of course, its cries of urgency ring increasingly hollow.”

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.” She concluded:

“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.”

“[when] some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants.

The Slate article concluded that “[when] some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else.”

Dissents are quite informing.

 



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