Supreme Court Justice Sotomayor rages that colleagues are conservative

Supreme Court Justice Sonia “Wise Latina” Sotomayor once was explicit that she values feelings over the law. She is discovering to her chagrin that this approach does not work when a majority of Justices believe in the Constitution. On Friday, her frustration erupted in an angry dissent attacking her colleagues for partisanship.

In 2009, Sotomayor gave a speech trumpeting life experience rather than the Constitution and the law as her guiding judicial principles:

Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Sotomayor disavowed the speech during her nomination hearing. Nevertheless, her a navel-gazing analysis was at the forefront when she wrote a dissent accusing her strict constructionist Supreme Court colleagues of improperly favoring the Trump administration.

To understand her dissent, you need to know about a January concurrence from Justice Gorsuch. Gorsuch wrote a strong rebuke to lower courts that have routinely issued blanket injunctions against the Trump administration, rather than limiting themselves to the parties before them:

But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to  see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts' equitable powers under Article III.

Given Gorsuch’s powerful Article III argument against overly-broad injunctions, it’s appropriate that, in Wolf v. Cook County, the Supreme Court stayed a state-wide preliminary injunction in a case challenging the Trump administration’s new rules refusing admission to immigrants likely to be “public charges.” (Under the old rule, only cash payments were public charges; under the new rule, all public benefits are public charges.)

Cook County challenged the rule change and the lower court, rather than issuing an injunction as to Cook County, issued the injunction to cover all of Illinois. The government sought to stay the injunction and the Supreme Court agreed.

Sotomayor’s dissent angrily said courts have always been able to issue nationwide injunctions and it’s unfair to reverse that practice. It’s really unfair when the injunction applies only to one State. And it’s super unfair when the appellate court will hear the matter within a short time and the government doesn’t make a good substantive argument. And the worst thing of all is that the policy “benefited one litigant over all others” – i.e., the Trump administration that has for years now been at the mercy of every two-bit “resistance” district court judge.

By contrast, said Sotomayor, the Court often refuses to issue stays of executions, even though the harm of a wrongful execution really is irremediable. In this regard, she misses that the Article III argument that Gorsuch advanced to stop global injunctions is inapplicable when a single petitioner’s case is at issue. Hers is an apples and oranges argument. The principle that the Court’s majority advanced in Wolf is that lower courts have authority only over the case before them, which is always the case with an individual's execution. End of story.

Although Sotomayor’s dissent was foolish and poorly written, it was a battle cry to Slate Magazine:

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. 

Article III Supreme Court justices following the Constitution. Wise Latinas and leftist online writers delve deep into victim politics and Trump Derangement Syndrome. In November, think very carefully whether you want more justices like Gorsuch on the Court, in which case you must vote for Trump, or more justices like Sotomayor, which is what a Bernie presidency promises.

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