U.S. Supreme Court Justice Sonia Sotomayor, one of the more liberal members of the high court, filed a blistering dissent in a recent immigration case – and it has gone viral. She actually said that her Republican-appointed colleagues are biased in favor of the Trump administration. And therein lies a fascinating tale.

At issue in the underlying case was the Trump administration’s expansion of the so-called “public charge” rule, under which the government can deny visas to non-citizens seeking to enter the U.S. if they would likely become “primarily dependent on the government for subsistence.” Until recently non-cash benefits such as Medicaid and certain housing assistance did not count. However, in 2019 the Department of Homeland Security issued a new rule adding those benefits to the list of disqualifying assistance. To say the least, this rule did not go down well in liberal circles, and advocacy groups mounted legal challenges to having it declared illegal.


In fact, in one of the cases a federal district court judge in Illinois almost immediately issued a preliminary injunction putting enforcement on hold until he could decide the case on the merits. However, he also made the injunction applicable nationwide, a practice that has been followed by judges with increasing frequency of late, even though trials on the merits and any appeals to federal appeals courts are extremely time consuming. In addition, in many instances, as in the immigration case, plaintiffs “forum shop” and file cases before courts with sympathetic judges. In this way, Trump initiatives have been stalled for years despite there not being any decision invalidating them on the merits.

So the Trump administration has taken to proceeding directly to the Supreme Court to promptly vacate preliminary injunctions in order to allow their policies to be implemented, at least until a decision on the legality of the policy is determined. And while the traditional view has been that the Supreme Court is the court of last resort, increasingly the Republican majority on the Court has been receptive to these end runs. And it was this trend that drew the ire of Justice Sotomayor.

When considering whether to issue a preliminary injunction in a particular case, a judge is supposed to weigh the chances of the rule or policy either being thrown out or sustained. Clearly, the greater the chance for ultimate vindication, the greater the justification for allowing it to be enforced at the outset, and vice versa.

The immigration case that so provoked Justice Sotomayor is most instructive in this regard. Federal law grants power over immigration policy in the most unqualified language one could think of:

Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the Unite States, he may by proclamation, and or for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

So if a judge must decide whether or not to preliminarily stay the enforcement of a presidential immigration directive, it would appear that predictions of the outcome of the case after trial and appeal would have to presumptively favor the president. Yet, even in this particular immigration case – and in others – President Trump was initially thwarted.

This is not to say that bypassing the usual rules of procedure is always a good thing. But where as here courts were driven by plainly political agendas, something had to give. Otherwise those wishing to thwart a president’s agenda will have found a convenient way to accomplish it. And this does not constitute the sort of favoritism Sotomayor argued was in play. It is more a matter of leveling the playing field.

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