From xxxxxx <[email protected]>
Subject Sotomayor Issues Scathing Dissent in Supreme Court Order that Could Reshape Legal Immigration
Date February 27, 2020 2:07 AM
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[ Charges her conservative colleagues on the court with being too
eager to side with the Trump administration] [[link removed]]

SOTOMAYOR ISSUES SCATHING DISSENT IN SUPREME COURT ORDER THAT COULD
RESHAPE LEGAL IMMIGRATION   [[link removed]]

 

Ariane De Vogue
February 24, 2020
CNN
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_ Charges her conservative colleagues on the court with being too
eager to side with the Trump administration _

, time.com

 

Justice Sonia Sotomayor wrote a scathing dissent late Friday night
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castigating the government for repeatedly asking the Supreme Court on
an emergency basis to allow controversial policies to go into effect
and charging her conservative colleagues on the court with being too
eager to side with the Trump administration on such requests.

The justice wrote that granting emergency applications often upends
"the normal appellate process" while "putting a thumb on the scale in
favor of the party that won." Targeting her conservative colleagues,
she said "most troublingly, the Court's recent behavior" has benefited
"one litigant over all others."

Sotomayor's dissent was in response to the court's 5-4 order
[[link removed]] granting
the government's request to allow its controversial "public charge"
rule to go into effect in every state. The rule makes it more
difficult for immigrants to obtain legal status if they use public
benefits like food stamps and housing vouchers. Although the three
other liberal justices on the bench also dissented, they remained
silent and did not join Sotomayor's decision.

"Claiming one emergency after another, the Government has recently
sought stays in an unprecedented number of cases," Sotomayor said. "It
is hard to say what is more troubling," she said, pointing to the case
at hand, "that the Government would seek this extraordinary relief
seemingly as a matter of course, or that the Court would grant it."
She noted that in the case at hand, the lower court order that the
Supreme Court lifted was narrow and only impacted one state.

Sotomayor's comments come as the Supreme Court is in the midst of a
blockbuster term considering issues such as abortion, LGBTQ rights,
the Second Amendment, immigration and President Donald Trump's effort
to shield his financial records. The justices are behind schedule
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releasing opinions, and court watchers have questioned if the delay is
caused in part by Chief Justice John Roberts' required participation
in the impeachment
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or if the justices themselves are fractured over a number of cases.
Although Sotomayor wrote alone, her opinion suggests unease behind the
scenes.

For its part, the government, supported by at least two conservative
justices, has argued in the past that emergency requests have become
necessary because lower courts are increasingly issuing broad
preliminary injunctions that cover states that weren't a party to the
original lawsuit.

On the one hand, Sotomayor says that the court is lowering its
standards when considering emergency requests from the government. On
the other hand, the Trump administration counters that such requests
are necessary because lower courts are issuing overly broad
preliminary opinions, prematurely blocking its policies while the
appeals process plays out.

Friday's order came after the Supreme Court last month, again dividing
5-4, allowed the "public charge" rule to go into effect across the
country -- except for Illinois -- because the state was governed by a
separate judicial order.

The Trump administration took the next step of asking the court to
lift the Illinois order. That request was granted Friday.

Now the public charge rule, scheduled for implementation Monday --
will take effect nationwide while the legal process plays out.

"This final rule will protect hardworking American taxpayers,
safeguard welfare programs for truly needy Americans, reduce the
Federal deficit, and re-establish the fundamental legal principle that
newcomers to our society should be financially self-reliant and not
dependent on the largess(e) of United States taxpayers," the White
House said in a statement Saturday.

Addressing more than the case at hand, Sotomayor wrote about what she
called a "now-familiar pattern."

"The government seeks emergency relief from this Court," asking the
justices to step in when lower courts have declined to do so, and then
the Court "has been all too quick to grant the government's reflexive
requests."

"Make no mistake," Sotomayor said, "this Court is partly to blame for
the breakdown in the appellate process."

She lamented the fact that the court has at times denied similar
emergency requests from death row inmates.

"The 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 said.

"I fear that this disparity in treatment erodes the fair and balanced
decisionmaking process that this Court must strive to protect," she
said.

Professor Steve Vladeck, a CNN contributor who has studied the issue
of emergency requests, noted in a recent piece for the Harvard Law
Review
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Solicitor General Noel Francisco has been more aggressive in seeking
to "short-circuit" the ordinary course of appellate litigation than
his immediate predecessors.

In an interview, Vladeck noted that Francisco has not always
prevailed, "but he has done so far more often than his predecessors."

"This is now the 24th time that the Trump administration has asked the
Supreme Court to put a lower court decision on hold in less than three
years compared to a total of eight such requests during the 16 years
of the George W. Bush and Obama administration's combined," Vladeck
said.

"As in this case, the justices have often agreed to these requests
even when the lower court ruling, as in the most recent case, had only
a local impact," he added.

But the government has complained there has been an uptick of orders
by lower courts blocking Trump policies nationwide. In late January,
for example, when the court allowed the public charge rule to go into
effect for every state except Illinois, Justice Neil Gorsuch joined by
Justice Clarence Thomas voted in the majority and wrote separately to
criticize the fact that the lower court had issued such a broad
injunction impacting those who weren't plaintiffs in the case.

Gorsuch criticized the "increasingly common practice" of trial courts
issuing broad orders blocking a policy.

"The routine issuance of universal injunctions is patently
unworkable," Gorsuch wrote.

Last May, Attorney General William Barr complained at a speech to the
American Law Institute, about nationwide injunctions, particularly how
they have blocked his administration from terminating DACA, an issue
that is currently before the Supreme Court.

He said that nationwide injunctions have "frustrated presidential
policy for most of the President's term with no end in sight." He said
we are "more than halfway through the President's term, and the
administration has not been able to rescind the signature immigration
initiative of the last administration, even thought it rests entirely
on executive discretion."

He said such injunctions "have injected the courts into the political
process" and inspired "unhealthy litigation tactics." He noted that
after the courts had blocked the travel ban, the Supreme Court
ultimately allowed the third version to go into effect.

"Limiting judicial power to resolving concrete disputes between
parties, rather than conducting general oversight of the Political
Branches, ensures that courts do not usurp their policymaking
functions," Barr said.

_Ariane de Vogue
[[link removed]] is CNN's
Supreme Court Reporter_

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