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Supreme Court Associate Justice Sonia Sotomayor .
Reuters/Eduardo Munoz
She respectfully dissents.
SHADOW DOCKET

Justice Sotomayor calls out the US Supreme Court in a sharp dissent

Washington DC
Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Yesterday, the US Supreme Court granted the federal government’s emergency request to stay an injunction in an Illinois case about the “public charge” rule in immigration. The order came with no explanation from most—not those in favor or opposed—just a vote count and a a damning dissent (pdf) from justice Sonia Sotomayor.

The five conservatives on the bench approved the government’s request and the four progressives voted no. Sotomayor accused her colleagues in the majority of undermining fairness and process by continually granting the Trump administration’s allegedly urgent demands.

“Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited Court resources in each. And with each successive application, of course, its cries of urgency ring increasingly hollow,” Sotomayor writes. 

But the disingenuous alarm isn’t what bothers her most. “Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others,” she notes.

That litigant is the federal government under president Donald Trump. Though she didn’t name the president in her dissent, the justice is clearly unimpressed with the Trump administration’s exceptional neediness, and even less taken with her colleagues’ willingness to be its supreme enforcers.

It’s not the first time Sotomayor has complained about the administration’s reliance on emergency action, and she’s not alone in seeing a disturbing practice emerging.

An active shadow docket

University of Texas law professor Stephen Vladeck wrote in the Harvard Law Review last year about the high court’s unusually active “shadow docket.” The federal government now turns to the justices for emergency relief, circumventing the usual appellate process, more than ever before. It doesn’t wait for lower courts to decide matters but goes straight to the top, claiming extraordinary needs—often with little supporting evidence—and has created this alternate docket, a shadow caseload the high court continually considers prematurely.

During the first 30 months of the Trump administration, the government sought emergency or extraordinary relief from the Supreme Court with “unprecedented frequency,” Vladeck argues. It applied for at least 20 emergency stays, filed petitions for review before judgment in nine cases, and sought writs of mandamus against three judges. That’s a stark contrast to the past 16 years, during which the government sought only eight stays total, four reviews before judgment, and no mandamus writs.

Vladeck, like Sotomayor, partly blames the court for the uptick in action. “[T]he Justices have largely acquiesced in the [government’s] newfound aggressiveness,” the professor writes. He argues that the justices mostly now seem to go with the government’s contention that it suffers irreparable harm from lower court rulings without attempting to measure actual likely damage. That’s precisely Sotomayor’s complaint in the latest case.

The professor, unlike the justice, however, also puts the people at fault. He says the public’s indifference to the additional activity is problematic. The emergency requests are granted and denied with great consequences, little notice, and “no public opprobrium.” 

Ultimately, all of this extraordinary action on behalf of the government by the highest court in the land undermines a central premise of the American legal system—that all litigants come as equals and can expect the same process, and consideration, whoever they may be. It’s merely an ideal, of course, but even concepts can erode. Sotomayor believes that is what’s happening now.

She condemns colleagues on the bench who are more susceptible to continual calls from the government about irreparable harm warranting emergency relief than they are to cries for help from prisoners being put to death. “This Court often permits executions—where the risk of irreparable harm is the loss of life,” the justice writes.

Yet here, where the government didn’t prove any harm would come from waiting for a lower court’s decision, and there’s less than a week to wait, the high court stepped in to answer the administration’s pleas for extraordinary relief.

The public charge rule fights

Yesterday’s order stems from an Illinois court, which halted application of the updated “public charge” rule in that state pending litigation. The government’s new reading of this longstanding rule requires officials to consider an immigrant’s self-sufficiency and the likelihood they will become a burden by assessing reliance on any and all government benefits. Previously only monetary assistance was a mitigating factor. 

The updated rule was challenged in courts around the country. A New York matter yielded a nationwide injunction barring its application while that case was pending. But two federal appeals courts declined to block it. The Trump administration thus challenged the New York court’s expansive stay in an emergency request to the high court, and the justices in a 5-4 vote granted it last month. 

That means the new public charge rule goes into effect everywhere but Illinois in the coming week, just as the Seventh Circuit Court of Appeals considers the Illinois injunction specifically. Sotomayor doesn’t see why the new grant was warranted under the circumstances. ”The Government’s only claimed hardship is that it must enforce an existing interpretation of an immigration rule in one State—just as it has done for the past 20 years—while an updated version of the rule takes effect in the remaining 49. The Government has not quantified or explained any burdens that would arise from this state of the world,” she writes.  

Sotomayor believes the emergency stays waste valuable time and resources on matters that are still being fleshed out in lower tribunals, eroding the whole appellate process. “[T]he Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s reflexive requests. But make no mistake: Such a shift in the Court’s own behavior comes at a cost,” the justice warns.

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