Tuesday 25 February 2020

Ted Cruz on Sotomayor’s Accusatory Supreme Court Dissent: ‘Like an Arsonist Complaining About the Noise From the Fire Trucks’

Sen. Ted Cruz (R-TX) schooled liberal Supreme Court Justice Sonia Sotomayor on her recent dissent in which she accused the conservative majority on the the Court of being biased in favor of the Trump administration in cases that they ask the Court to block nationwide injunctions by lower court judges. Cruz spoke about the issue at a Senate Judiciary Committee hearing on Tuesday about nationwide injunctions. Cruz wryly observed that none of Sotomayor’s colleagues joined in her accusatory dissent.
Cruz cited the explosion in the number of nationwide injunctions against the Trump administration in just three years, fifty-five, compared to the sixteen previous years against the Obama and Bush administrations, 19 and 12, respectively. Cruz stated that one-third of the anti-Trump injunctions came from California federal courts while two-thirds of the fifty states had zero nationwide injunctions from federal courts, indicating a problem with “Resistance” judges.
“…I believe we have a handful of judges who are operating effectively as part of the Resistance Movement, trying to put themselves in the way of Trump policies they happen to disagree with. And so I have to say I read Justice Sotomayor’s complaint about, ‘gosh, we’re getting all these emergency appeals of the Supreme Court’, I read it a little bit like an arsonist complaining about the noise from the fire trucks. The reason there is so many appeals is you’ve had fifty-five nationwide injunctions from far too many judges who are not honoring their oath. They’re not following the law. Instead they’re operating as partisan political activists.”
Cruz posted video of his remarks with this statement to Twitter, “It’s clear there are a handful of activist district judges trying to stop @realDonaldTrump’s policies. Just look at the number of universal injunctions issued: 12 issued in 8 yrs of Bush Admin 19 issued in 8 yrs of Obama Admin 55 issued in just 3 yrs of Trump Admin”
Earlier Tuesday President Trump called on Sotomayor and her fellow anti-Trump Justice Ruth Bader Ginsburg to recuse themselves from Trump-related cases.
The case Sotomayor dissented in involved an appeal by the Department of Homeland Security for an injunction in a ruling against the imposition by the administration of a “public charge rule” regarding immigrants in an Illinois case that the Court has already allowed for the other 49 states. (DHS fact sheet on public charge rule.)

Sotomayor’s dissent is in the context of the growing pushback in recent years by President Trump and his administration that has found support from the Court’s conservative majority against the imposition of nationwide injunctions by individual District Court judges against Trump administration actions. The increased imposition of nationwide injunctions has fueled a belief the lower courts are acting politically as part of the anti-Trump resistance.
Sotomayor wrote in her conclusion:
Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Murphy v. Collier, 587 U. S. ___, ___ (2019) (second statement of KAVANAUGH, J.) (slip op., at 4); see also id., at ___ (ALITO, J., joined by THOMAS and GORSUCH, JJ., dissenting from grant of stay) (slip op., at 6) (“When courts do not have adequate time to consider a claim, the decisionmaking process may be compromised”); cf. Dunn v. Ray, 586 U. S. ___ (2019) (overturning the grant of a stay of execution). 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.
I respectfully dissent.
The complete seven page dissent can be read at here at the Supreme Court.

Slate provided the Resistance translation of Sotomayor’s dissent:
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.

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