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Sotomayor on the Trump Court

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Yesterday, the Supreme Court allowed the new Trump administration rules arbitrarily limiting green card eligibility to go into effect in all 50 states. As Justice Sotomayor observed in her dissent, the the to stays that led to this outcome would have been unusual before the Roberts Court met its strong ally Donald Trump:

Sotomayor’s dissent focuses less on the question of whether the Trump administration’s public charge rule is legal, and more on what she describes as a “now-familiar pattern” in the administration’s interactions with the Supreme Court.

At least two lower courts handed down orders blocking the new public charge rule — one of those decisions blocked the rule across the country, while the other blocked it only in Illinois. Last month, the Supreme Court voted 5-4 along familiar partisan lines to stay the lower court order blocking the rule on a nationwide basis. Friday’s order stays the decision blocking it in Illinois.

Until recently, it was extraordinarily unusual for the government to seek such a stay from the justices while a case was still winding its way through lower courts. As Sotomayor warned in a dissenting opinion last September, “granting a stay pending appeal should be an ‘extraordinary’ act. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal.”

According to a recent paper by University of Texas law professor Stephen Vladeck, “in less than three years, [Trump’s] Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone)” — and Vladeck’s paper did not include the Trump administration’s two applications in the public charge cases. By comparison, “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 Trump administration, moreover, has a high win rate when it seeks extraordinary relief from the Supreme Court. It’s achieved a partial or full victory in about 65 percent of the cases where it asked the Supreme Court to temporarily block a lower court’s opinion.

As Sotomayor explains in her Wolf opinion, it is very unusual for the Supreme Court to grant such relief so easily.

Because the Supreme Court is the final word on nearly all questions of federal law, it typically likes to let novel legal issues percolate in the lower courts before handing down a final command. “Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument,” Sotomayor writes in her Wolf dissent. They also “upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay.”

And in this Supreme Court, that party is almost always the Trump administration.

And as Sotomayor observes, this is particularly different than the way the Court had treated petitioners who literally have their lives on the line:

More here.

On Halloween 2016, I was invited to give a talk about whether the federal courts would present a major check on the Trump administration. My answer, which won’t surprise anyone familiar with my work, was that there’s nothing inherent about judicial power that makes judges want to check overreach by the other branches; the question is whether the relevant judicial majorities substantively approve of what the relevant state actors are doing. Since Trump winning would mean a Republican-dominated Supreme Court, that meant a Supreme Court that was going to be Trump’s partner much more than its antagonist. Of course, it was much more pleasant to say all that when it was a longshot hypothetical than when it’s actually happening.

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