Tweeting just before appearing at a welcome ceremony at the Indian president’s ceremonial residence in New Delhi, Trump cited a Laura Ingraham segment on Fox News titled, “Sotomayor accuses GOP-appointed justices of being biased in favor of Trump.” He then called on Sotomayor and Ginsburg to recuse themselves in all Trump-related matters.
“Trying to ‘shame’ some into voting her way?” Trump said of Sotomayor. “She never criticized Justice Ginsberg when she called me a ‘faker'. Both should recuse themselves on all Trump, or Trump related matters! While ‘elections have consequences’, I only ask for fairness, especially when it comes to decisions made by the United States Supreme Court!"
He doubled down on his criticism during a news conference Tuesday in New Delhi, telling reporters that the basis for his belief that the justices should recuse themselves was “very obvious.”
“I always thought, frankly, that Justice Ginsburg should do it, because she went wild during the campaign when I was running,” he said. “I don’t know who she was for — perhaps she was for Hillary Clinton, if you can believe it —but she said some things that were obviously very inappropriate.
“She later sort of apologized. I wouldn’t say it was an apology, but she sort of apologized. And then Justice Sotomayor said what she said yesterday. You know very well what she said yesterday. It was a big story. And I just don’t know how they can not recuse themselves for anything having to do with Trump or Trump-related.”
Trump’s comments targeting Sotomayor and Ginsburg come as he has faced criticism for targeting sitting judges and injecting politics into the judiciary. It’s not unusual for a president to criticize decisions of the Supreme Court and the lower courts. Most have avoided singling out a judge or justice by name, as Trump does, or challenging their fairness and integrity.
The back-and-forth, as well as events sometimes beyond control of the individual justices, often entangles the court with the White House in an unwelcome political spotlight. Chief Justice John G. Roberts Jr. was obligated to preside over Trump’s impeachment proceedings. After Trump criticized Sotomayor and Gorsuch, social media erupted over reports about the role of Justice Clarence Thomas’s wife Ginni in creating lists for the Trump White House about who should be considered loyal to his administration. Ginni Thomas, a longtime conservative activist, was in the cheering crowd at the White House event Trump organized to celebrate his acquittal.
As for Sotomayor, Trump was provoked by a dissent she wrote last week after the Supreme Court, in a 5-to-4 decision, allowed the Trump administration’s “public charge” rule to go into effect. The immigration policy turns away immigrants likely to rely on public benefits to support themselves or their families.
On Friday, the conservative justices on the court granted the administration’s emergency application to halt a lower court’s ruling temporarily blocking the “public charge” rule from taking effect in Illinois.
Sotomayor’s chief complaint was that the Supreme Court has been too quick to grant “emergency” relief to the federal government in numerous cases — even though the government presents almost no convincing evidence of an emergency.
“It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it,” Sotomayor wrote.
Historically, the government has “leapfrogged” over lower courts to appeal to the Supreme Court on relatively rare occasions to block adverse rulings before they are fully litigated. The Trump administration, however, has done so with considerable success and increased regularity, particularly in immigration-related cases.
When seeking an emergency stay of a lower court’s order, the government must demonstrate among other things that it will face “irreparable harm” if the order is allowed to take effect. Sotomayor argued that the government has not remotely achieved that standard — not only in this case, but in many others.
Sotomayor said that the government keeps “claiming one emergency after another,” while seeking stays in an “unprecedented number of cases.”
“And with each successive application, of course,” she wrote, “its cries of urgency ring increasingly hollow."
The problem is both with the federal government’s legal strategy — turning an emergency form of relief into a “normal” course of action — and with the Supreme Court’s willingness to buy into that flawed legal strategy, she argued.
“Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others,” Sotomayor wrote — referring to the Trump administration.
During the Tuesday news conference, a reporter questioned what was inappropriate about Sotomayor’s comments. He noted that she was seemingly criticizing the White House for “running to the Supreme Court at the drop of a hat.”
“No, I don’t think that was it,” Trump replied. “But I think what she did say is: She’s trying to shame — the way I look at it is, she’s trying to shame people with perhaps a different view into voting her way, and that’s so inappropriate.”
He argued without evidence that “virtually everybody” agrees Sotomayor’s dissent was “really highly inappropriate.”
But Stephen I. Vladeck, a professor at the University of Texas School of Law, called attention to the pattern of behavior that Sotomayor was criticizing in a November 2019 paper in the Harvard Law Review. He found that Trump’s solicitor general sought emergency stays in 20 cases in the first 2½ years of Trump’s term, including six to stop nationwide injunctions against Trump’s travel ban and three involving the transgender military ban.
By comparison, in all 16 years of the Barack Obama and George W. Bush administrations, the solicitor general filed a total of eight stay applications.
He called it the solicitor general’s “shadow docket.”
“A majority of the Justices now appear to believe that the government suffers an irreparable injury for purposes of emergency relief whenever a statute or policy is enjoined by a lower court, regardless of the actual impact of the lower court’s ruling,” Vladeck argued.
In the case at hand, the alleged “irreparable harm” for the federal government was that it could not implement its new “public charge” rule in a single state, Illinois. A federal judge in Chicago had temporarily blocked the “public charge” rule from taking effect, ruling in favor of a coalition of immigrant-rights nonprofit organizations and Cook County, Ill., which sued to stop the policy.
For the past 20 years, the government defined “public charge” as a person who is “primarily dependent on the government for subsistence,” and did not consider whether the person may need noncash public benefits, such as food stamps, in deciding whether someone was a public charge. The new definition of public charge, however, is “an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period” — including benefits such as food stamps and most forms of Medicaid.
What is the alleged “irreparable harm,” Sotomayor questioned, of allowing the 20-year status quo to continue in a single state?
“In sum, the Government’s only claimed hardship is that it must enforce an existing interpretation of an immigration rule in one State — just as it has done for the past 20 years — while an updated version of the rule takes effect in the remaining 49. The Government has not quantified or explained any burdens that would arise from this state of the world,” she wrote.
The Illinois lawsuit was one of several filed to stop the rule from going into effect; one judge in New York had granted a nationwide injunction — which has also since been overturned by the Supreme Court.
In that decision last month, Justice Neil M. Gorsuch argued that the “real problem” was that district court judges were issuing too many nationwide injunctions, granting relief that “transcends cases before them” and affects the whole country.
“As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions,” Gorsuch wrote.
Vladeck, however, noted that appeals courts would be just as likely to modify a nationwide injunction if they thought the injunction wasn’t narrowly tailored enough, addressing Gorsuch’s concern.
On Monday night, Vladeck took issue with Trump and Ingraham’s framing of Sotomayor’s dissent as a political tirade against “GOP-appointed” judges for “Trump bias.” Her dissent “accuses the majority of wrongly tipping the scales for emergency relief in the favor of the federal government — not of pro-Trump bias."
“And as I’ve explained at length before,” he wrote on Twitter, linking to his Harvard Law Review paper, “she’s right.”
Legal scholars expressed alarm most recently after Trump targeted U.S. District Judge Amy Berman Jackson, the judge overseeing the Roger Stone case. He also singled out the jury forewoman and dangled the possibility of a pardon while sentencing was underway. He has attacked “Obama judges” in the U.S. Court of Appeals for the 9th Circuit for ruling against his immigration policies in 2018 — eliciting rare pushback from Chief Justice John G. Roberts Jr.
Neither the Justice Department nor the White House responded to requests for comment Monday night.
Robert Barnes contributed to this report.