Bench Memos

Law & the Courts

Ginsburg and Sotomayor Are the Most Political Justices

Supreme Court Justice Ruth Bader Ginsburg in 2017 (Jonathan Ernst/Reuters)

On February 21, Justice Sotomayor created a national spectacle by issuing a strident dissent from the Supreme Court’s 5-4 order to stay a district court injunction against the Trump administration’s implementation of its rule enforcing the Immigration and Nationality Act’s policy of withholding green cards from aliens who are likely to become a “public charge.”

Her opinion was distinctive in its attack on both the Trump administration and her colleagues for siding with it on the subject of nationwide injunctions. On the former: “Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited Court resources in each.” On the latter, she called her conservative colleagues “all too quick to grant the Government’s” requests and concluded, “Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others.” She blamed her fellow justices for nothing short of — get this — a “breakdown in the appellate process.”

Sotomayor is correct about the “unprecedented” part, because there has been a serious judicial aberration. And a “breakdown” has taken place . . . in a limited number of injunction-happy trial courts. By getting it backwards, her diatribe effectively condones this aberration while attacking those colleagues who would put the brakes on it.

Nationwide injunctions, which grant relief to parties outside the case when it is not necessary to do so to redress the injuries of plaintiffs or in the class action context, did not exist before the first such injunction was ordered in 1963. Afterwards, according to the Justice Department, they were “exceedingly rare” until the Reagan administration. But even between the Reagan and George W. Bush administrations, courts ordered only 1.5 nationwide injunctions per year, a number that increased to 2.5 per year during the Obama administration.

Under President Trump, that annual average has skyrocketed to more than 18, thanks to a bias against Trump among judges who have been willing to put their thumbs on the scale since his presidency began. This phenomenon has been visible to all who are willing to take an honest look. Less than a month after Trump’s inauguration, after the Ninth Circuit upheld a temporary restraining order against the first version of the travel ban, one of Trump’s liberal critics, University of Chicago law professor Eric Posner, acknowledged that the courts may be creating a “‘Trump exception’ to settled law on presidential powers” — one that holds the current president to a different standard from that of his predecessors. Unfortunately, subsequent experience bore out this observation.

Such a double standard is particularly dangerous when it is adopted by justices on the Supreme Court. By embracing judicial partisanship, Sotomayor has cast herself, along with Justice Ginsburg, as the most political justices in the Court’s recent history. Ginsburg belongs in this category because of comments like the ones she made during the election of 2016:

  • “I can’t imagine what the country would be with Donald Trump as our president.”
  • “He is a faker.”
  • “How has he gotten away with not turning over his tax returns?”
  • “I don’t want to think about that possibility [of a Trump victory].”

Ginsburg ultimately had to apologize for her remarks, which are more partisan than any the public has heard from sitting justices in recent years. But that has not kept her from joining Sotomayor to vote against the administration and make blistering dissents. She was the only justice to join Sotomayor’s dissent in Trump v. Hawaii, which dodged what in any other administration would have been a straightforward conclusion regarding presidential authority to issue the third version of the travel ban — gratuitously mulling over the president’s supposed anti-Muslim animus and accusing the majority of “redeploy[ing] the same dangerous logic underlying Korematsu,” the infamous decision upholding Japanese internment camps during World War II.

That followed years of their hyperbolic dissents on politically charged issues. Take, as an example, affirmative action: Sotomayor, joined by Ginsburg, accused the Court of “abdicat[ing]” its “role, permitting the majority to use its numerical advantage to change the rules mid-contest and forever stack the deck against racial minorities in Michigan” by upholding a voter-approved state constitutional amendment barring racial preferences in state university admissions (Schuette v. Coalition to Defend Affirmative Action). Or religious freedom: Ginsburg, joined by Sotomayor and in large part by the other two liberal justices, accused the majority of reading into the Religious Freedom Restoration Act a “radical purpose” and reaching a decision that could wreak “havoc” (Burwell v. Hobby Lobby Stores). According to SCOTUSBlog, Ginsburg and Sotomayor agreed with each other (in full, part, or in the judgment) 93 percent of the time last term and 95 percent of the time the term before that.

Trump has made headlines for saying that the two justices should recuse themselves from cases involving him. They won’t do that, but it would be disingenuous to plead ignorance as to why any astute observer would question their impartiality.

It is also worth noting that Ginsburg and Sotomayor embody the characteristics of the Supreme Court that the Left wants — ideologues willing to put their thumbs on the scale for liberal causes. Remember this when Democratic presidential hopefuls say they would appoint “justices like Ginsburg and Sotomayor.”

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