Apparently, if you’re a lower-court judge who is appointed by a president, you’re not supposed to rule in favor of that president when cases involving him come up. However, it’s perfectly fine to make that observation in a dissent and not recuse yourself from cases involving that president.
That’s the lesson from a scathing dissent by Supreme Court Justice Sonia Sotomayor last week in a case involving the Trump administration expanding the number of non-citizens who could be denied legal status in the United States based upon a stricter interpretation of whether they would be a “public charge.”
The government has previously issued guidance saying that to determine a “public charge” — someone who is “primarily dependent on the government for subsistence” — non-cash benefits such as Medicaid and food stamps didn’t need to be taken into account, according to Fox News. A 2019 Department of Homeland Security rule changed that.
In her dissent, Sotomayor managed not just to attack the decision reached by the court’s conservative majority but the majority itself — with, of course, the subtext that two of the judges are Trump appointees.
Now, GOP Arkansas Sen. Tom Cotton says Sotomayor should recuse herself from cases involving the Trump administration — along with Ruth Bader Ginsburg, another Democrat-appointed justice who’s made her disapproval of President Donald Trump clear.
In an appearance Tuesday on Fox News, Cotton addressed the president’s comments on the two justices during a news conference in New Delhi that Fox News aptly described as “lively.”
“I just thought it was so inappropriate, such a terrible statement for a Supreme Court justice,” Trump said of Sotomayor’s dissent. “She’s trying to shame people with perhaps a different view into voting her way, and that’s so inappropriate.”
“I just don’t know how they can not recuse themselves from anything having to do with Trump or Trump-related. The right thing to do is that,” the president added.
“What Justice Sotomayor said yesterday was really highly inappropriate and everybody agrees to that. Virtually everybody. I’ve seen papers on it, people cannot believe that she said it.”
What she said was that the court’s new conservative majority was kowtowing to the Trump administration after the 5-4 decision that upheld the “public charge” rule in Wolf v. Cook County.
In her dissent, Sotomayor criticized the administration for using the Supreme Court to rule on so many emergency stays to lower-court decisions that went against it. She also criticized the court’s conservative majority for ruling in its favor.
“Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases,” Sotomayor said in her dissent.
“It is hard to say what is more troubling,” she continued, “that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”
While the case only affected the program’s legality in the state of Illinois, the subtext was clear: Conservative justices are too political.
One could also argue that she meant Trump-appointed justices are too political: She said that by granting emergency stays, justices were interrupting “the normal appellate process” while “putting a thumb on the scale in favor of the party that won.”
Ginsburg has also been open in the past about her disdain for Trump, including a 2016 interview in which she called him a “fake” with “no consistency about him.”
Cotton sided with Trump when asked about the recusals during a Tuesday appearance on “Fox & Friends” in which he said this kind of interference is “unprecedented.”
“Those questions — just like Justice Sotomayor’s dissent — is an example of liberal Democrats projecting their own behavior onto the president,” Cotton said.
“Justice Sotomayor is complaining that the Supreme Court has now enjoined multiple left-wing judges at the trial court level for blocking the president’s entire regulatory reform agenda.
“What’s unprecedented is not what the Supreme Court is doing, it’s what all of these resistance judges are doing around the country when the president is passing regulations and they are trying to stop them nationwide from going into effect.
“That’s a practice that has to stop. I’m glad the Supreme Court has been stopping it on an ad hoc basis. They need to stop it permanently.”
Cotton brings up several good points here — notably that Sotomayor has no problem with left-leaning judges on lower level courts blocking Trump administration policies but finds it political when Supreme Court justices don’t necessarily agree with those judges.
But, hey — if she has a problem with expressly political judges, she could always recuse herself. And Ginsburg could join her.
That probably won’t happen, but a conservative could always dream.
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