In Which a Supreme Court Justice is Wrong

Supreme Court Justice Sonya Sotomayor didn’t just get it wrong in her dissent, she is wrong.

In Wolf v Cook County, the Supreme Court upheld the Trump administration’s expansion of its public charge rule regarding immigrant visas to include a bar on

non-cash benefits such as the Supplemental Nutrition Assistance Program (SNAP), forms of Medicaid, and certain housing assistance….

Sotomayor opened her dissent from the Court’s decision with this:

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.

Lower courts said it two times—it must be true. Lower courts have already said it. The superior court is obliged, somehow, to accede to its subordinates.

Besides: a court of appeals (the 7th Circuit) is going to hear oral argument this week as I write. Oral argument. Not review the written submissions, much less rule; that usually comes some indeterminate amount of time, usually measured in weeks, later. Especially if lower courts, like Sotomayor here, don’t see the matter as the emergency that the government avers.

She went on:

But this application is perhaps even more concerning than past ones. Just weeks ago, this Court granted a stay of a different decision involving the same administrative rule at issue here, after the Government professed urgency because of the form of relief granted in the prior case—a nationwide injunction.

This is fractured logic, and Sotomayor knows better. The Court objected to the nationwide aspect of that district court ruling because that lower court badly overstepped its bounds. And having lifted the nationwide injunction, the Court had no reason to reach the emergency aspect of the situation.

And this:

The Government’s professed harm, therefore, boils down to an inability to enforce its immigration goals, possibly in only the immediate term, in one of 50 States. 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.

Because the government should not—of course!—be allowed to enforce its immigration goals. And because unless the harm isn’t nationwide, can the harm only be limited to a single State in our Union, the harm doesn’t matter. Never mind that much of the cost on not enforcing in the one State, Illinois, will be borne by that one State—and Illinois is, by many definitions, bankrupt already.

And now Sotomayor’s arrogant self-importance begins to be revealed:

…even putting aside the dissent of four Justices in the New York cases and the plaintiffs’ weighty arguments on the merits….

The Liberal minority disagreed. And her prejudgment of the matter: the plaintiffs’ weighty arguments on the merits.

And Sotomayor closed with this [citations omitted]:

…most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This 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.” … Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances—where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decision-making process that this Court must strive to protect.

Never mind the non sequitur nature of her analogy. The execution cases that the Court has declined to (further) stay are cases that have been appealed repeatedly and on successively flimsier grounds (for the most part). They’ve already been extensively adjudicated, and further delay would at best be unnecessary—that ground having already been plowed lots of times—and would border on violation of the 8th Amendment.

On the other hand, the harm done by 20 years of too narrow (as now realized) enforcement of the public charge rule would be extended by not lifting injunctions against its enforcement pending final adjudication.

But her position is of a piece with her claim to personal superiority.

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

It’s hard for her bias to get any more blatant.


I respectfully dissent.

There’s nothing respectful about her dissent; she attacked her fellow jurists’ integrity and morality, and she insulted the intelligence of all of us.

The Supreme Court’s stay of the Cook County case and Sotomayor’s dissent can be seen here.

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