“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

In a strong dissent in Wolf v. Cook County in February 2020, Justice Sonia Sotomayor criticized the majority, including Trump justices Brett Kavanaugh and Neil Gorsuch, for granting “emergency” relief allowing controversial Trump policies to take effect even when they have been enjoined by other judges. This particular case related to Trump’s wealth test  for immigrants as applied in Illinois, but others have concerned restrictive Trump policies concerning LGBTQ individuals, the border wall, and other subjects. As Sotomayor pointed out, this pattern of 5-4 rulings has “benefited one litigant over all others”: the Trump administration.

Last year, the administration published a change to the 20-year-old “public charge” rule, which allows the exclusion of immigrants likely to need significant public welfare and other benefits. The Trump change drastically tightened the rule, however, so that even legal immigrants must prove their financial status to the satisfaction of immigration officials in order to enter or remain in the U.S., going “far beyond” previous laws and rules. After briefing and argument, several lower courts granted injunctions against the rule, but as reported by this blog, the 5-4 Supreme Court ruling granted an “emergency” stay of those injunctions in January, without argument and without explanation, except for a concurrence by Gorsuch and Thomas suggesting they were concerned about the nationwide scope of a lower court injunction in New York.

A federal court in the Wolf case had similarly enjoined the new wealth test but limited its injunction to the state of Illinois. The case was scheduled for oral argument in a federal appellate court in late February. Despite that, and even though the policy could go into effect in the 49 other states because of the Court’s actions, the Trump Administration sought an “emergency” stay of the injunction against the policy in Illinois. With absolutely no explanation, the same 5  justices, including Gorsuch and Kavanaugh, granted a stay in the Illinois case on Friday night February 21.

The four moderate justices dissented, and Justice Sotomayor wrote a particularly “withering” dissent. She pointed out that under Supreme Court rules, someone who wants to jump the normal process of review and get the Court to grant an “emergency” stay of a lower court order must prove a true emergency. But there was no “urgency” in this case, especially since the court of appeals would hear the case “next week,” and the administration could not demonstrate “any of the supposed harm that would come from the Illinois-specific injunction,” Sotomayor noted.

Sotomayor explained that the problem goes far beyond the improper stay in this case. “Claiming one emergency after another” with little or no evidence, she pointed out, the Trump administration has recently sought to leapfrog over lower courts and get stays in the Supreme Court in an “unprecedented number of cases.” In fact, one study showed that the Trump administration tried to get such emergency stays in 20 cases during its first 30 months, compared with only 8 such requests over the previous 16 years, covering both Republican and Democratic administrations.

Such stays are granted without full briefing and argument and with little or no explanation, unlike merits decisions by the Court. This blog and others have documented a number of such troubling rulings where the Court has allowed the Trump Administration to put into effect harmful policies that lower courts have ruled illegal. In addition to the January wealth test case discussed above, such peremptory stays have allowed Trump to spend billions of Pentagon dollars on his border wall, and to put into effect his order banning transgender individuals from the military. In contrast, Sotomayor pointedly noted, the same five justices have often denied stays where truly irreparable injury is at stake concerning the death penalty.

This “disparity in treatment” of stay requests, Sotomayor concluded, “erodes the fair and balanced decision-making process that this Court must strive to protect.” More bluntly, it shows a clear bias by Trump and other right-wing justices that has “benefited one litigant over all others”: Donald Trump.