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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
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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.