On Friday evening, by a 5–4 vote, the Supreme Court allowed the Trump administration’s wealth test for immigrants to take effect in Illinois. All four liberal justices dissented from the order, which changes relatively little: Thanks to the conservative justices’ intervention in January, the wealth test was poised to take effect in 49 states, and Friday’s vote lets the government apply it in the last state left. What’s most remarkable about the decision is Justice Sonia Sotomayor’s withering dissent, which calls out—with startling candor—a distressing pattern: The court’s Republican appointees have a clear bias toward the Trump administration.
Trump’s wealth test marks a brazen attempt to limit legal immigration by forcing immigrants to prove their financial status to enter, or remain in, the United States. It goes far beyond any statute passed by Congress, forcing immigrants to demonstrate that they will be not a “public charge”—that is, they won’t rely on any public assistance, including Medicaid, housing vouchers, and food stamps. Because the policy departs so dramatically from federal law, several courts blocked its implementation in 2019. In January, however, the Supreme Court allowed the wealth test to take effect over the dissent of all four liberals. The majority did not explain its reasoning. But Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote a concurrence complaining that a district court had blocked it across the country, decrying the “rise of nationwide injunctions.”
Gorsuch’s opinion raised the possibility that the conservative justices disapproved of the scope of the district court’s injunction, not the reasoning behind it. If that were true, the conservatives should not have unsettled a narrower injunction limited to Illinois. But they did just that on Friday, once again without explaining themselves. Once again, the liberals dissented, but only Sotomayor wrote separately, in an opinion notable for its caustic tone and candid assessment of her colleague’s prejudices. “Today’s decision follows a now-familiar pattern,” Sotomayor began. “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.” In other words, SCOTUS rewarded the Department of Justice for short-circuiting the appellate process and demanding immediate relief.
“But this application is perhaps even more concerning than past ones,” Sotomayor continued. Previously, the DOJ “professed urgency because of the form of relief granted in the prior case—a nationwide injunction.” Now there’s no nationwide injunction, so there’s no apparent “urgency.” The DOJ “cannot state with precision any of the supposed harm that would come from the Illinois-specific injunction, and the Court of Appeals for the Seventh Circuit has scheduled oral argument for next week.” Yet SCOTUS lifted the injunction anyway. “It is hard,” Sotomayor wrote, “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.”
Normally, “to justify upending the normal rules,” the government “must also show a likelihood of irreparable harm.” And “it has not made that showing here.” But this shortcut to SCOTUS has become “the new normal”; it has happened over and over and over again, as the DOJ leapfrogs over the lower courts to seize a victory at the Supreme Court. Sotomayor explained:
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. And with each successive application, of course, its cries of urgency ring increasingly hollow.
But the Supreme Court’s conservatives repeatedly accept the DOJ’s declarations of an “emergency,” giving Donald Trump whatever he wants.
This practice, Sotomayor wrote, has “benefited one litigant over all others”: the Trump administration. And the injustice of this favoritism is especially painful in light of the court’s recent refusal to halt unconstitutional executions. “This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed,” Sotomayor noted, blaming death row inmates for their ostensible failure “to raise any potentially meritorious claims in a timely manner.” She concluded:
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 decisionmaking process that this Court must strive to protect.
Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else. And, as Sotomayor implies, this flagrant bias creates the disturbing impression that the Trump administration has a majority of the court in its pocket.