On Monday, Supreme Court Justice Sonia Sotomayor gave her colleagues a bracing slap for the way in which they’ve been doing favors for Donald Trump. Much more than in the past, the court has been rushing to grant “emergency” stays even when there seems to be no emergency. Republican justices have been signing on to appeals for no apparent reason other than that Trump has an interest in the case, and overall mechanisms that are supposed to be reserved for urgent matters of nation interest have turned into a bell cord that Trump can apparently pull at will, summoning up his faithful servants on the court.
Sotomayor’s dissent in the case of Wolf v. Cook County made clear her dissatisfaction with how the court was acting to involve itself in cases that failed repeatedly in lower courts—cases in which the law appeared to be clear and unambiguous—with Republican justices consistently throwing Trump a rescue line in cases that he plain old lost. And, speaking from India, Trump had an answer to Justice Sotomayor’s dissent: Any justice who doesn’t like him should just recuse themself from every decision from now on.
As NPR reports, Trump expressed his disgust with Justice Sotomayor for trying to persuade the other justices to take on a different point of view. “What Justice Sotomayor said yesterday was highly inappropriate,” said Trump. “She’s trying to shame people with perhaps a different view into voting her way.”
What Sotomayor did is called arguing a point. Also making a case. It might also be called a large part of the job that people on the Supreme Court are hired to do. But Trump made it absolutely clear that arguing that the court needs to be impartial and not consistently side with the Trump White House over the decisions of lower courts, its own past decisions, and the law is unacceptable. And he extended his condemnation to include Justice Ruth Bader Ginsburg who, according to Trump, “went wild” in an undefined way during the 2016 presidential campaign. “I just don’t know how they cannot recuse themselves for anything Trump or Trump-related,” said Trump during an interview in Delhi.
In his smackdown of women justices who disagreed with him, Trump did overlook Justice Elena Kagan, who was nominated by President Barack Obama. Trump will surely get around to including her in his argument that women justices should shut up, sit down, and let the menfolk—especially, the good, Trump-loyal menfolk—make all the decisions.
The particular case that generated Sotomayor’s dissent was an order from the Trump White House making it more difficult for immigrants to seek a path to citizenship if they had ever availed themselves of public aid—even when this was done in a perfectly legal manner. Obviously the only emergency here was … none at all. Especially since Trump’s argument was more or less laughed out of two lower courts, and a number of legal challenges were ongoing.
But the Justice Department under Attorney General William Barr has made it a habit to apply for an emergency stay even in the most trivial of circumstances. And like an ambulance screaming in to deal with a paper cut, Brett Kavanaugh reliably led the charge to use Trump’s latest tool of hate , ahead of the hundreds of more urgent items that demand the Supreme Court’s attention.
As Sotomayor wrote in her dissent,
Today’s decision follows a now-familiar pattern. The Government seeks emergency relief from this Court, asking it to grant a stay where two lower courts have not. The Government insists—even though review in a court of appeals is imminent—that it will suffer irreparable harm if this Court does not grant a stay. And the Court yields.
There is an emergency here. It’s not that clear precedent says Trump can’t punish immigrants for availing themselves of assistance purposely opened to them by acts of Congress and by states. The emergency is that Republicans on the court are so eager to prove themselves rubber stamps for Trump that they are regularly fast tracking his cases. Even when that means running roughshod over lower courts and previous decisions, even when they were the authors of those previous decisions. Here is, of all things, Fox News discussing Clarence Thomas’ efforts to bend the law into Trump-shaped pretzels.
In a dissent to the high court’s decision Monday not to hear a tax case, Supreme Court Justice Clarence Thomas managed to cite an opinion that he wrote while making the case for why the tribunal should overturn a precedent he authored.
In that case, Thomas was not successful. He could not find even three Republican Justices who would follow him around this loop-the-loop of Forget what I said then, this is what I’m saying now.
But over and over, Kavanaugh and Gorsuch and Thomas have been successful at turning the court into a faithful dog that comes running when Trump sounds the bell (What’s that? Donny is down the well again?).
If Trump can only get Sotomayor and Ginsburg to sit down and shut up, the Republicans on the court will keep right on saving him, no matter how far they have to go. Or they’ll keep saving him with narrow, completely partisan decisions. Which is what is happening now.