Republicans have gone to extreme lengths to establish ideological dominance on the Supreme Court. After the death of Justice Antonin Scalia in February 2016, Majority Leader Mitch McConnell refused to even consider a nominee from President Obama. Instead, McConnell held the seat open for nearly a year, hoping for a Republican victory in November.
McConnell's gambit paid off, and Trump outsourced the Supreme Court selection process to the Federalist Society, which vets candidates for ideological purity. This resulted in two new justices, Neil Gorsuch and Brett Kavanaugh, who replaced moderate Anthony Kennedy. Gorsuch and Kavanaugh joined the existing right-wing flank — John Roberts, Samuel Alito, and Clarence Thomas — to form a powerful conservative majority.
Those five justices are now quietly circumventing the traditional legal process to do the bidding of the Trump administration. Justice Sonia Sotomayor, an Obama appointee, has had enough. In an unusually scathing dissent, Sotomayor formally accused the conservative majority of "putting a thumb on the scale" for the Trump administration.
Charging ahead with anti-immigrant policy
At issue is a revised version of the "public charge" rule issued by the Trump administration in August 2019. Previously, a person who was "primarily reliant" on cash assistance from the government, like welfare, could be denied entry to the United States, a visa extension, or a grant of permanent residency. Under the new rule, immigrants can be denied entry — or lose their legal status — if they use a much broader array of government services, including nutritional assistance, health care, or housing vouchers. In addition, immigrants can be deemed denied entry if an immigration official determines they "are likely to become a public charge in the future."
It's a cruel policy pushed by White House adviser Stephen Miller who would like to make sure more immigrants come from rich, white countries. It came after the administration failed to advance changes to the legal immigration system through Congress.
This drastic rule change "goes far beyond any statute" and was challenged in the courts. Three federal judges blocked the implementation of the law nationwide, finding that the Trump administration likely exceeded its authority, and implementing the rule before the litigation completed would cause irreparable harm. A separate federal court decision blocked the rule in Illinois.
"One litigant over all others"
In January, the five conservative justices stayed the nationwide bans. Gorsuch and Thomas claimed they were concerned that the lower court rulings were overly broad since they blocked the policy in the entire country and not just in the state where the suit was filed.
Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.
Then, on Friday, the same justices stayed the order blocking the public charge rule just in the state of Illinois. Sotomayor called them out on the hypocrisy. The Supreme Court, she argues, is not concerned with nationwide bans; it is concerned with doing the bidding of the White House. She noted the Supreme Court is far more willing to intervene to push through a Trump administration policy than to delay an execution.
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.” Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstance...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.
As Sotomayor notes, the Supreme Court's actions — intervening in the case before the appeals process has played out — is supposed to be a rare action confined to cases where the failure to act would create extraordinary harm. Here, the government did not articulate any harm from not granting the stay, but the Supreme Court granted it anyway.
The shadow docket
In the ordinary course of business, a federal case winds itself through the federal district and appeals courts. That process might involve temporary injunctions or other preliminary rulings, but it's all handled by the district court and intermediate federal courts of appeal. When all that is over, the losing party decides whether or not to ask the Supreme Court to review the decision. Most requests, due to time constraints, are denied. This is how the system works.
The Trump administration has taken a different approach. It has repeatedly asked the Supreme Court to intervene before the lower courts have fully considered the case. The Trump administration has done so at a rate that is exponentially higher than previous administrations. A recent paper by Professor Stephen Vladeck in the Harvard Law Review goes over the stats:
[I[n less than three years, the Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone). During the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight such applications — averaging one every other Term.
The Supreme Court has approved, in full or in part, about 65% of the Trump administration's requests for emergency relief. The effect has been to effectively create a parallel legal system that allows the administration to advance its policies without first dealing with lower federal courts. In instances when the administration's requests are denied, "the Court’s denial of relief has come summarily and with no public opprobrium — no suggestion from the Court that the Solicitor General is abusing his unique position, taking advantage of his special relationship with the Court, or otherwise acting in a manner unbecoming of the office he holds," Valdeck writes.
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It’s becoming so hard to focus on my various fears for my grandchildren. Help me to decide which subject I should be more terrified of...a lunatic SCOTUS, the dismantling of our democracy, or the destruction of our environment.
We are now witnessing the execution phase of a plot to stack the courts with ultra-conservatives that goes back decades. And like Trump, Chief Justice Roberts feels so emboldened that the Court's partisan decisions are now blatantly obvious. It was five Republican-appointed justices who ended the recount and named George Bush president in 2000, going so far as to write their decision was a one-off and should not be considered a precedent. After all, they didn't want a Democrat to benefit from a recount that is stopped before it reaches its conclusion. Let's remember that Bush filled two Supreme Court seats.
Conspiracy theory? Mitch McConnell showed his hand when he refused to even allow a vote on Merrick Garland, declaring the American people should decide who picks the next SC Justice since the presidential election was a year away. Still trying to find that "election year" rule in the Constitution. But maybe I should stop looking since McConnell boasted he would fill a seat in an election year as long as Trump was in office.
And it wasn't just the Supreme Court seat that McConnell and the GOP held open. McConnell refused to act on more than a hundred Obama federal court nominees, which is why Trump—via McConnell and the Federalist Society—has already given out more lifetime federal court judgeships in three years than Obama did in eight.
More than 25% of federal judges are Trump appointees. If he wins re-election, the far-right takeover of the federal court system will be complete and the last line of defense in the Trump/GOP's war on government will be lost.