Trump’s Sotomayor Slam Is a Swipe at the Supreme Court

(Bloomberg Opinion) -- Here’s the good news about President Donald Trump’s call for Justices Sonia Sotomayor and Ruth Bader Ginsburg to recuse themselves from all future cases involving his administration: It won’t move the two stalwart liberal justices an inch.

Better still, questions of any justices’ recusals are decided by — you guessed it — the justices themselves. Sotomayor and Ginsburg can do whatever they want, and that isn’t going to include being pushed around by Trump, or by anyone else for that matter.

Nevertheless, it’s serious business that Trump has suggested that there were “obviously inappropriate” things in Sotomayor’s recent dissent criticizing his administration for repeatedly seeking emergency actions from the Supreme Court. Trump is wrong: There’s nothing improper in the dissent. It’s perfectly appropriate for justices to criticize an administration’s legal positions in strong terms. What’s really inappropriate is that the President of the United States is trying to undercut the legitimacy of individual liberal justices — and of the Supreme Court itself. That isn’t normal and it isn’t OK.

Trump’s feud with Ginsburg goes back to 2016. The details show how perfectly ordinary Sotomayor’s dissent was.

In July 2016 interviews with the New York Times’s Adam Liptak and then with CNN’s reporter Joan Biskupic, Ginsburg expressed outrage at the prospect of the Trump presidency. She told Liptak, “I can’t imagine what [the Supreme Court] would be — I can’t imagine what the country would be — with Donald Trump as our president.” To Biskupic she said that Trump was a “faker.”

When Trump hit back, Ginsburg apologized, saying in an official statement that her comments were “ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office.”

That back-and-forth stands in sharp contrast to Sotomayor’s dissent (which, it’s worth noting, Ginsburg did not join.)

The case involved the Trump administration’s plan to refuse green cards to people whom it predicts might conceivably in the future qualify for public benefits like Medicaid or food stamps. A lower federal court judge in Illinois had issued an order blocking the administration from implementing the policy in that court’s jurisdiction, on the view that the plan is unlawful.

The Trump administration went to the Supreme Court to ask it to lift the lower court’s order and enable it to start applying its policy in Illinois.

Ordinarily, before the Supreme Court will intervene to overturn a lower court’s order, there have to be special circumstances — like an emergency situation that would cause irreparable harm to the government if the order remains in place. To suggest that the circumstances were appropriate for lifting the order, the administration insisted — outrageously, it must be said — that there was an emergency need for the Trump policy to take effect right away and that the government would suffer irreparable harm if the administration’s plan had to wait while the case made its way to the court of appeals and then to the Supreme Court.

Such emergency appeals have become commonplace during the Trump years, mostly in response to the fact that lower courts have frequently issued orders staying the Trump administration’s most blatantly unlawful executive orders or policy plans.

Sotomayor’s dissent pointed out, first, that this was not a nationwide injunction issued by a single district court. Last month, the justices by a vote of 5 to 4 had overturned one such nationwide injunction, issued by a federal district court in New York.

But the Illinois injunction didn’t block the Trump administration from implementing its plan altogether; just from implementing it in Illinois. Sotomayor said that it was “troubling” that the court was now issuing such emergency orders “as a matter of course.” So far, that’s a fairly temperate critique.

Sotomayor then marched through the various elements that the government is supposed to prove to get the extraordinary relief of lifting a lower court order. She concluded the government hadn’t met its burden. This kind of criticism is also completely normal.

The only tough language in her dissent came when she argued that the government had begun to treat the “exceptional mechanism” of seeking to flip a lower court order “as a new normal.” In the course of making that argument, she wrote that the government had been “claiming one emergency after another” — which is true. “With each successive application, of course,” she went on, the government’s “cries of urgency ring increasingly hollow.”

That was an expression of her point of view, namely that a government that keeps on insisting on emergencies loses credibility over time. As the Supreme Court’s language goes, this was hardly a major declaration. Compare it to the late Justice Antonin Scalia’s insistence in his dissent from the court’s decision striking down the Defense of Marriage Act that the majority opinion consisted of “legalistic argle-bargle.”

Trump was clearly wrong to say there was anything inappropriate about Sotomayor’s dissent. So why say it?

What the president is doing is pretty obvious. He’s trying to convince his supporters that the justices are biased against him and that any time they rule against his administration it must be out of personal animus or unfairness.

Chief Justice John Roberts won’t like this. He voted with the majority in this case; but he wants to uphold the legitimacy of the Supreme Court. Trump wants to tear down that very same legitimacy.

It’s hard to escape the conclusion that, having shown his mastery over Congress by escaping conviction his impeachment trial, Trump now wants to take on the third branch of government, namely the court. It won’t work. Yet the legitimacy of any government body can be affected by repeated attacks. The Chief Justice should issue a public statement in response to Trump, as he has occasionally done in the past. Sotomayor has nothing to apologize for.

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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