Justice Sotomayor warns the Supreme Court is doing “extraordinary” favors for Trump

Justice Sonia Sotomayor wrote a brief but pointed dissent Wednesday evening from a Supreme Court order that effectively locked nearly all Central American migrants out of the asylum process. Asylum allows foreign nationals who face certain forms of persecution to seek refuge in the United States.

The Court’s order is temporary, and it only allows the asylum ban to remain in effect while the case is working its way through the courts. It stays a lower court decision that blocked the ban. Though this litigation will continue to percolate in lower courts, other judges are likely to read the Supreme Court’s order as a sign that a majority of the justices will ultimately uphold the ban.

As is often the case with such temporary orders, there was no majority opinion — and thus no explanation of why the Court ruled the way it did or even how each member of the Court voted. We only know that Sotomayor voted against the stay, and that Justice Ruth Bader Ginsburg joined Sotomayor’s dissent.

The sharpest part of Sotomayor’s opinion may be its final paragraph, which accuses a majority of her colleagues of bypassing the Court’s ordinary procedures in order to bail out the Trump administration.

[G]ranting a stay pending appeal should be an “extraordinary” act. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively. See, e.g., Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. (forthcoming Nov. 2019). Not long ago, the Court resisted the shortcut the Government now invites. I regret that my colleagues have not exercised the same restraint here. I respectfully dissent.

To translate this paragraph a bit, a “stay pending appeal” is an order that suspends a lower court’s decision while the case is working its way through an appeals court. On Wednesday, the Supreme Court granted such a stay of a lower court order that blocked a Trump administration policy preventing most Central American migrants from seeking asylum.

As Sotomayor notes, the Supreme Court rarely granted such stays in the past, and for good reason. Because the Supreme Court is the final word on any legal dispute, it typically likes to hang back for a while as lower court judges wrestle with new legal questions. If a lower court hands down an erroneous order, and the Supreme Court does not take immediate action, then the erroneous order may remain in place for months. But a lower court decision will eventually work its way through the appeals process and can be reversed by the Supreme Court if it is wrong about the law.

If the Supreme Court acts prematurely, however, its erroneous decision could last forever because no higher court can overrule the justices.

Thus, out of a healthy fear that its mistakes could linger, the Court historically has preferred to give lower court judges time to consider novel legal questions so that the justices can be informed by those judges’ opinions before the Supreme Court hands down a final word. Sotomayor’s warning is that her Court may no longer be exercising such caution — at least when the Trump administration comes knocking (though it is worth noting that Sotomayor’s dissent also notes a recent case where the Court behaved more cautiously).

A majority of the Supreme Court, in other words, appears to be sacrificing caution and care in favor of a process that makes it easier for the Trump administration to implement its policies.

Trump has been aggressive in asking the Court to intervene for his administration

The most interesting part of Sotomayor’s dissent may be the citation to a forthcoming law review article by Stephen Vladeck, a law professor at the University of Texas. In that piece, Vladeck notes that Trump’s Justice Department has been far more aggressive than its predecessors in asking the Court to intervene at early stages of litigation. “To take one especially eye-opening statistic,” Vladeck writes, “in less than three years, the Solicitor General has filed at least 20 applications for stays in the Supreme Court (including 10 during the October 2018 Term alone).”

By contrast, “during the 16 years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight such applications — averaging one every other Term.”

The Trump administration, in other words, is behaving as if the Court is its personal concierge service — and the Republican-controlled Supreme Court is doing little to disabuse the administration of this idea.

The Trump administration does not always succeed when it seeks extraordinary relief from the justices. Vladeck says that, if you just look at how often the Trump administration prevails when it seeks such relief, its success rate is only “middling.” Nevertheless, he also argues that the raw numbers are deceiving. “The net effect of the Court’s actions in most of these cases has left the Solicitor General with most of what he has asked for,” according to Vladeck’s paper, “generally leaving the specific federal policy under challenge in place ... pending the full course of appellate litigation.”

The administration also faces no penalty for seeking extraordinary relief. As Vladeck writes, “the Court’s denial of relief has come summarily and with no public opprobrium — no suggestion from the Court, or any of the Justices, that the Solicitor General is abusing his unique position, is taking advantage of his special relationship, or is otherwise acting in a manner unbecoming the office he holds.” Sotomayor’s rebuke in her Wednesday dissent appears to be the first public indication that a justice is not happy with this state of affairs.

There is another aspect of this asylum ban case that is worth noting briefly. Last term, Justice Neil Gorsuch, a Trump appointee, handed down an opinion calling for strict new limits on the executive branch’s power to make policy without first seeking approval from Congress.

Though Gorsuch’s opinion in Gundy v. United States was technically a dissent, it’s because conservative Justice Brett Kavanaugh did not participate in the case, which was argued before he joined the Court, and because conservative Justice Samuel Alito voted with the liberal justices for idiosyncratic reasons that are unlikely to repeat in a future case. So Gorsuch’s Gundy dissent is almost certainly a kind of majority-opinion-in-waiting.

As I explained earlier this week, the limits on executive power Gorsuch articulated in Gundy are hard to square with the sweeping limits on asylum that the Trump administration implemented and that the Supreme Court allowed to take effect on Wednesday.

Some of the justices, in other words, do not simply appear willing to ignore the Court’s ordinary procedures when the Trump administration seeks extraordinary relief. They also may be applying one legal regime to regulations they disapprove of, and another, more permissive, legal regime to the Trump administration.

If that’s the case, it should worry anyone who cares about the rule of law.