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Supreme Court Associate Justice Sonia Sotomayor issued a scathing rebuke of the court’s decision to allow the Trump administration to enforce its “public charge” rule in the state of Illinois, limiting which non-citizens can obtain visas to enter the U.S.
Sotomayor’s problems with the conservative majority’s ruling went far beyond this case, claiming that it was symptomatic of the court’s habit of siding with the government when they seek emergency stays of rulings against them.
“It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it,” Sotomayor wrote in her dissent.
This particular case, Wolf v. Cook County, deals with the Trump administration’s expansion of situations where the government can deny visas to non-citizens looking to enter the U.S. Federal law already says that officials can take into account whether an applicant is likely to become a “public charge,” which government guidance has said refers to someone “primarily dependent on the government for subsistence.” In the past, non-cash benefits such as the Supplemental Nutrition Assistance Program (SNAP), forms of Medicaid, and certain housing assistance did not count, but the Department of Homeland Security issued its new public charge rule in 2019 which did include these benefits.
The new rule was already blocked with a nationwide injunction in a separate case, so the Supreme Court’s granting of a stay in the Cook County case only lets the government enforce the rule in the state of Illinois while litigation continues.
That narrow scope, plus the fact that the 7th Circuit is scheduled to review the Illinois injunction in the coming week, led Sotomayor to believe that the government was not at risk of suffering significant harm that warranted the Supreme Court putting the injunction on hold.
The liberal justice expressed concern that a majority of her colleagues had no problem with this. She explained that it is unusual for an administration to seek stays against injunctions with this sort of frequency, yet it is becoming the new normal.
“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,” she wrote. “And with each successive application, of course, its cries of urgency ring increasingly hollow. Indeed, its behavior relating to the public-charge rule in particular shows how much its own definition of irreparable harm has shifted.”
Sotomayor went on to claim that the Supreme Court has been overly accommodating when it comes to stay applications, but mainly just for the Trump administration. In contrast, she pointed out, they tend to deny stay applications for executions.
“I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect,” she said.
Democratic presidential hopeful Mike Bloomberg threw his support behind Sotomayor in a Saturday tweet.
“Justice Sotomayor is right to sound the alarm,” Bloomberg tweeted Saturday. “If Trump wins in November, the Supreme Court essentially will become a rubber stamp for his assault on immigrants, health care and equality.”
Recent history, however, shows that the conservative majority has been anything but in lockstep with conservative politics. Last year, Justices Brett Kavanaugh and Neil Gorsuch — both Trump appointees — drew attention for siding with the court’s liberal contingent on a number of cases.
Chief Justice John Roberts, appointed by President George W. Bush, had perhaps the most notorious break from the conservative ranks when he ruled in favor of Obamacare in 2012.