You might be wondering why Trump decided to go on the attack against Supreme Court Justice Sonia Sotomayor this week.
To understand why Sotomayor has suddenly become a target, it is helpful to talk about the way that this administration is changing how presidential policies are being handled in the courts.
One of the reasons Senate Majority Leader Mitch McConnell is so committed to stacking the courts with extremist conservative judges is that, as I pointed out last week, the Trump administration’s incompetence has led to an abysmal record in the courts. Whereas previous administrations prevailed in the courts 80 percent of the time, this president has failed in over 90 percent of the cases his administration has argued.
What this often means is that lower courts issue injunctions against the implementation of the administration’s policies while the case works its way through the courts. Attorney General William Barr complained about that practice in his speech to the Federalist Society.
First used in 1963, and sparely since then until recently, these court orders enjoin enforcement of a policy not just against the parties to a case, but against everyone. Since President Trump took office, district courts have issued over 40 nationwide injunctions against the government. By comparison, during President Obama’s first two years, district courts issued a total of two nationwide injunctions against the government…
It is no exaggeration to say that virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts. No other President has been subjected to such sustained efforts to debilitate his policy agenda.
Of course, Barr didn’t mention that those major policies have been frozen by the lower courts because the Trump administration failed to make a coherent case in support of them, so the courts have temporarily halted their implementation. As an example, this is what Coral Davenport wrote about their efforts to roll back Obama’s fuel efficiency standards.
In January, administration staff members appointed by President Trump sent a draft of the scaled-back fuel economy standards to the White House, but six people familiar with the documents described them as “Swiss cheese,” sprinkled with glaring numerical and spelling errors (such as “Massachusettes”), with 111 sections marked “text forthcoming.”
The cost-benefit analysis showed that consumers would lose more money than they would gain. And, because the new auto pollution rule lacks the detailed technical analyses required by law, the regulations would be unlikely to withstand court challenges…
More basic issues holding up the regulations point to another problem: the skeleton crew of inexperienced political appointees who are heading the drafting process may not be up to a job that would usually be handled by career federal workers with decades of expertise.
The Trump administration’s response to these failures has been to go directly to the Supreme Court and ask them to expedite emergency relief from the injunctions of the lower courts.
Professor Steve Vladeck, a CNN contributor who has studied the issue of emergency requests, noted in a recent piece for the Harvard Law Review that Solicitor General Noel Francisco has been more aggressive in seeking to “short-circuit” the ordinary course of appellate litigation than his immediate predecessors.
In an interview, Vladeck noted that Francisco has not always prevailed, “but he has done so far more often than his predecessors.”
“This is now the 24th time that the Trump administration has asked the Supreme Court to put a lower court decision on hold in less than three years compared to a total of eight such requests during the 16 years of the George W. Bush and Obama administration’s combined,” Vladeck said.
That is precisely what sparked Justice Sotomayor’s critique against the conservative justices on the Supreme Court, who have consistently been willing to grant that relief to the Trump administration.
The justice wrote that granting emergency applications often upends “the normal appellate process” while “putting a thumb on the scale in favor of the party that won.” Targeting her conservative colleagues, she said “most troublingly, the Court’s recent behavior” has benefited “one litigant over all others.”…
“Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases,” Sotomayor said. “It is hard to say what is more troubling,” she said, pointing to the case at hand, “that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.” She noted that in the case at hand, the lower court order that the Supreme Court lifted was narrow and only impacted one state.
That is what has placed Sotomayor’s name in the news. I seriously doubt, however, that Trump understands or cares about these legal maneuverings, which is why he couldn’t articulate his objections to Sotomayor during a news conference in India today.
The reason Trump is on the attack against liberal Supreme Court justices probably has more to do with a case that is being made against Justice Clarence Thomas. As we’ve seen, the president is in the midst of a purge of federal employees who don’t demonstrate enough loyalty to him. Jonathan Swan reported that Ginni Thomas—the wife of Clarence Thomas—has been deeply involved in lobbying on behalf of a purge, providing the administration with lists of who needs to go as well as potential replacements.
In response, there have been calls for Thomas to recuse himself on matters related to Trump and his administration. Trump’s call for Sotomayor and Ginsberg to recuse themselves is not only a way to further politicize the Supreme Court; it also provides his media enablers with a distraction from the issues surrounding Thomas and the ability to pretend that both sides do it.
As I’ve been suggesting for a while now, the Supreme Court is scheduled to issue rulings in several explosive cases prior to the November election. One of them has to do with whether or not Trump will be required to release his tax returns. From everything we’ve seen, that is the hill that this president is prepared to defend at all costs. And according to CNN, the latest dissent issued by Sotomayor could indicate that tensions are rising as the justices consider these major cases.
The justices are behind schedule in releasing opinions, and court watchers have questioned if the delay is caused in part by Chief Justice John Roberts’ required participation in the impeachment proceedings, or if the justices themselves are fractured over a number of cases. Although Sotomayor wrote alone, her opinion suggests unease behind the scenes.
All of this is probably just the opening salvo in what promises to be a very contentious season for the Supreme Court.