In a few short years, Donald Trump has managed to corrupt some of our most time-honored and respected democratic institutions to a degree previously unimagined. The Judicial Branch has been hit hard especially as Trump and Senate Majority Leader Mitch McConnell (R-KY) have packed the courts full of regressive right-wing fanatics, many of whom are deeply unqualified for their appointments by any reasonable metric. The Supreme Court too has been ravaged with the seat stolen from Merrick Garland by McConnell going to Neil Gorsuch and the subsequent appointment of credibly accused sexual predator Brett Kavanaugh to another spot on the bench. In short, things look grim.
Last night, the Supreme Court affirmed for the time being the Trump administration’s right to stop the asylum applications for almost all migrants along the southern border and force them to instead request asylum from one of the countries they pass through on the way to the American border. The administration will retain this sweeping power until the dispute has made its way through the lower courts to a final ruling. It represents a chilling victory for the president and his racist agenda and sends a stark message to the world that the United States is becoming an increasingly hostile and cruel place.
Justice Sonia Sotomayor, an Obama era appointee to our nation’s highest court, has written a striking dissent to yesterday’s decision. In it, she elegantly lays out her opposition to this particular incident, but perhaps the most disturbing part comes in the final paragraph, in which Sotomayor opens up her dissent to a broader critique of the court’s behavior. She writes that the federal government rarely used to ask the Supreme Court to stay “pending appeals” such as this but now does so “reflexively,” meaning that she sees a pattern of behavior developing under this administration.
“In sum, granting a stay pending appeal should be an ‘extraordinary’ act. Williams, 442 U. S., at 1311. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively. See, e.g., Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. (forthcoming Nov. 2019). Not long ago, the Court resisted the shortcut the Government now invites. See Trump v. East Bay Sanctuary Covenant, 586 U. S. ___ (2018). I regret that my colleagues have not exercised the same restraint here. I respectfully dissent.”
In other words, the Trump administration has been exceptionally aggressive in pushing the Supreme Court to intervene as cases work through lower courts, and Sotomayor believes the court—which again, it should be mentioned now contains two Trump appointees—has been far too happy to oblige this new federal approach. One can’t help but worry there is a sinister ideology at work here. Hopefully, the damage this president is inflicting on this country will be undone after a Democrat takes over, but the problems with the courts could take a far longer time to untangle.