Justice Sotomayor Warns About Conservative Control in the Supreme Court

That the Trump Administration would want to block the entry of immigrants deemed “substantial public charges” into the country was to be expected; that the Supreme Court would allow it remains surprising.

In a 5-to-4 decision, the nation’s highest court — now in a conservative majority — gave the green light to the government’s Immigration and Nationality Act, which proposes to prevent immigrants who may require benefits such as Medicaid, food stamps, and housing vouchers from gaining access to green cards or permanent residency.

According to the New York Times, this decision follows a previous ruling last month where, with a similar result, the Supreme Court allowed the government to continue with its plans, even though “challenges to the program will continue to move forward in courts around the nation.”

Last Friday’s decision, however, “lifted a much more limited injunction,” one that applied only in Illinois.

For the only Latina justice, Sonia Sotomayor, the conservative decision of her colleagues is not as worrying as the president’s new habit of immediately resorting to the Court “after interim losses in the lower courts.”

“Claiming one emergency after another, the government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited court resources in each,” she wrote in her Wolf Dissent. “And with each successive application, of course, its cries of urgency ring increasingly hollow.”

As the justice explained, this is just one more step in the government’s strategy to close the country’s doors and turn its back on immigration, always using the last resort in the Supreme Court, which the judge has called “a now-familiar pattern.”

“It is hard to say what is more troubling,” Sotomayor wrote. “That the government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”

“Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument,” she added. They also “upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay.”

As Vox explained, of the 5 million people who received a green card in recent years, 69% have “at least one negative factor against them under the new rule,” which would imply that the government’s measure could reduce to more than 50% the chances of immigrants to gain permanent residence in the country.

According to The Hill, this policy also “virtually bars legal immigrants from using public assistance,” for fear of losing the possibility of staying in the country. And for Sotomayor, this is part of the lack of “objectivity” of the Court and her colleagues in considering the consequences of such a decision.

“This Court is partly to blame for the breakdown in the appellate process,” She wrote. “That is because the Court — in this case, the New York cases, and many others — has been all too quick to grant the Government’s ‘reflexiv[e]’ requests. But make no mistake: Such a shift in the Court’s own behavior comes at a cost.”

“I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect,” Sotomayor concluded.