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How the Supreme Court Allows Trump Lawyers to Weaponize Procedure

Premature applications for intervention by the high court quietly enable some of the worst administration policies, writes Brennan Center Fellow Andrew Cohen.

February 25, 2020
James Leynse

Supreme Court Justice Sonia Sotomayor said the quiet part aloud late last Friday in her pointed dissent in the “public charge” immigration case challenging new Trump administration rules designed to justify the punishment of more immigrants simply because they are poor.

The Court’s five conservative justices had once again sided with the Trump administration, this time allowing the administration’s harsh new interpretation of the Immigration and Nationality Act to go into effect pending the resolution of litigation challenging it. And Sotomayor rightly was having none of it. There was no good reason for the Court to allow the rules to be implemented before being adjudicated, and the justice said so.

Sotomayor voted with her three liberal colleagues to block the new policy from going into effect for now, but she alone called out her conservative colleagues. She sees them as persistently and unduly deferring to the administration’s lawyers when, following losses in lower courts, those lawyers argue that there can be no delay in the implementation of draconian policies. Administration lawyers “claiming one emergency after another,” Sotomayor argued, are simply not meeting the legal or factual burdens for the stays they consistently are receiving from the Court’s conservatives. Then Sotomayor lowered the boom.

“Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This 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 wrote. “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.

Sotomayor’s dissent was described roundly online as “scathing,” but I think it was rather polite. What she really is saying is that the same justices who have no problem allowing condemned prisoners to be killed before legitimate questions about their cases can be resolved have no compunction in rushing to prematurely protect the Trump administration, and the president’s personal interests, from legitimate legal processes. In other words, Sotomayor is calling her conservative colleagues hypocrites who are willing to bend precedent in the pursuit of ideological goals. 

It’s not hard to understand Sotomayor’s frustration. She has a front-row seat to the Court’s quiet accession to the worst excesses of the Trump administration, not just on the merits of its unconstitutional policies, but in the way Justice Department lawyers have gamed legal procedure

Law professor Stephen Vladeck, for example, has called out administration lawyers for creating what is essentially a “shadow docket” in which they seek to block challenges to their dubious policies by asking the Supreme Court to step in before lower courts can render decisions. 

The problem goes beyond the “public charge” case that set off Sotomayor or even the broader issue of challenges to the administration’s immigration policies. More than three years into the Trump administration, there has been no “war is not a blank check” moment like we experienced in the context of the “war on terror” in which the Court courageously blocks executive branch overreach. Instead, to use Chief Justice John Roberts’s infamous analogy, the Court’s conservatives have acted as umpires who call all strikes for one side and all balls for the other, often quietly allowing Trump to get his way without having to face scrutiny for rulings on the merits of the cases. 

Take congressional oversight, for example. It is clear that the Constitution grants the legislative branch the authority to issue subpoenas seeking information about the executive branch. Yet the Court has failed to expedite the legal disputes over congressional subpoenas aimed at discovering information about the financial dealings of the president and his family. This slow-walking by the federal judiciary, including the Supreme Court, is not a neutral position. It tips the scales in favor of Trump and against transparency and accountability, giving the president a win whether he deserves it or not.

Between now and the end of June the Court will decide dozens of cases, many of which are of enormous political and historical significance. Justices Neil Gorsuch and Brett Kavanaugh aren’t suddenly going to turn into Justices John Paul Stevens and David Souter, or even Justice Sandra Day O’Connor or Anthony Kennedy, and become moderating forces. Nor should we expect the chief justice, who gutted the Voting Rights Act and gave us Citizens United, to become one. There is no reason today to think that the most reactionary court in nearly a century won’t consistently rule by 5–4 margins in favor of conservative causes. 

For this the Court will be heralded in some quarters and blasted in others. But it already has declared itself in Trump’s camp this term, over and over again, using stay procedures as both a shield and a sword for the administration, without paying much of a price in terms of its institutional credibility. That’s what Sotomayor was getting at last week when she raised her rhetorical voice and sounded the alarm. A cynical age, in which Trump’s nominees have taken over the federal judiciary, has begotten a Supreme Court majority in which the forces of misdirection routinely prevail and few even notice or seem to care. 

The views expressed are the author’s own and not necessarily those of the Brennan Center.