The Numbers Are On Sotomayor’s Side

by Justice Ginsburg four years ago. Her statement was so inappropriate when you're a justice of the Supreme Court, and it's almost what she's trying to do is take the people that do feel a different way and get them to vote the way that she would like them to vote. I just thought it was so inappropriate, such a terrible

statement for Supreme Court justice. In her descent, so To Mayor criticized the Court's conservatives for granting so many of the Trump administration's emergencies stay requests that it's become the new normal instead of the exception. And so To Mayor has the numbers to support her dissent. Joining me now is Stephen Vladdock, a professor at the University of Texas

Law School. He researched the numbers of emergency relief request the Trump administration has made for a Harvard Law Review article that's so to major sided in a similar dissent, Let's start first with what the Court actually did in

that vote last Friday. Sure, so you know that the Supreme Court had already put on hold a nationwide injunction and issued by a federal judge in New York against this so called public charge rule, this you know, new immigration rule that would make it harder for individuals who the government deems likely to need some kind of public

assistance to receive any kind of lawful immigration status. But there was also a non nationwide injunction just in Illinois, and this was the government's request to the Supreme Court to also put that statewide injunction on hold. That's what the Supreme Court, by a five to four vote, agreed to do last Friday, so that there would be a nationwide lift not just of the New York conjunction, but

of the Illinois injunction as well. So, while the case is winding its way through the lower courts, the justices are allowing the President to do what he wants, and it could take years for the case to get back to the Court. So it's a win win for the administration. That's right, and I think it's worth stressing it's not just that it could and probably will take years for the cases to get back to the Supreme Court, that there's no guarantee that the cases will actually ever get

to the Supreme Court. I mean, we saw with travel Band two point oh, and we saw with one of the early rounds of the census litigation contacts in which the government went running to the Supreme Court for an emergency stay, got the emergency's day, and then the government actually abandoned what it was doing before the merits ever got to the Supreme Court. So it's basically a heads

we win, tails you lose. Where without any kind of conclusive resolution of these legal questions, the government basically gets somewhere between one and three three years to put these programs into effect. Does that mean the justices who voted for the Trump administration are buying the administration's argument that this is an emergency situation and the government would suffer

irreparable harm if it can't implement this new rule. It's hard to say, June, because in theory, the Court is supposed to be balancing four factors when it decides whether to grant us stay in a case like this pending an appeal. One of those factors is the likelihood of success on the merits. So, of course, you know, if the justices were convinced there was no chance the government's

gonna win, there shouldn't be a stay at all. But even in cases where there's a majority of justices who do believe that the government has a likeli to success on the merits, that's not supposed to be conclusive. That is to say, even then, that's supposed to be balanced against just exactly what the harm is, either to the government from putting this policy on hold pending these appeals, or to those who the policy effects by allowing the

policy to go into effect pending the appeals. And you know, Jude, I think the frustrating trend that Justice so to Mayor, was planting without in her descent that I've actually written

about it some length. The trend is that there's a majority of the Court that now it seems to just be increasingly indifferent to what we call balancing of the equities to contrasting the harm to the government on the one hand with the harm to the public where the harm to those affected by these policies has just about

dropped out of the calculus. And if you drop that out of the calculus, June, then yeah, this really does become increasingly just a question of whether five or more justices believe that when push comes to shove, the government's gonna win. The Supreme Court is the last word, and usually it lets novel issues percolate, a word we usually hear with respect to this in the lower courts before it even considers a novel issue. And that's something she also addresses. So give us a little bit of the

context of what she said. Yeah, I mean, you know, this is a court that lately has been very insistent as the court like say that it's a court of

review not first view. That's on shows up eleven different times last term alone, and so historically what that's meant, June, is that this is a court that's been very reluctant to grant stays, where stays really are the exception not the rule um And to that end, I mean, if you look at the practice during the George W. Bush administration all eight years and the obadministration all the years, you combine those two very different administrations, the government only

sought a stay from the Supreme Court of a lower court decision a total of eight times in those sixteen years. Contrast that with the first three years of the Trump administration, where the government has sought twenty four stays um, including

ten during the October term alone. So part of I think what Justice stud of myor is complaining about is not just that the government has become so much more willing to seek this kind of relief from the Supreme Court, but that the majority, you know, even in the cases where the majority has refused to grant the relief, there's been no expression from the majority that this uptick is inappropriate, that this listener general is taking advantage of the court

in some respect. And so that's why I think Justice is rightly concerned that this has becoming the new normal where any time the government is subject to any injunction nationwide or not of any policy, no matter how controversial, no matter how debatable, it runs to the Supreme Court and is able to get a stay while the litigation

challenging that policy, which ultimately might succeed, goes forward. Many of President Trump's victories at the Supreme Court so far have been temporary, the Supreme Court granting emergency relief to the government by blocking the orders of lower courts until legal challenges can go through the normal appeals process, and so allowing the Trump administration to implement its policies. Last Friday, in a dissent, Justice Sonya Soto Mayor called the Conservative

justices on this pattern. I've been talking to Professor Stephen Vladdock of the University of Texas Law School. Steve, you researched and wrote a paper on this before the Soda Mayor descent. In fact, she cited that paper in a prior dissent. Why did you decide to research this topic, June.

I think those of us who watched the court carefully and closely, I think had sort of anecdotal senses that there was an uptick in what the Solicitor General was doing, and you know, so I thought it might be worth trying to convert the anecdotes into data. So I started first by, you know, trying to compile a list of all of the times Trump administration had tried to basically

jump the queue since it came into office. And then I went back and tried to contrast that with you know, however, much data was available, but the best data really dates only from two thousand onwards. So that's why I focused

on the Bush and Obama administrations. And you know, the more work I did June, the more the data seemed to be quite striking in the contrast between the paucity of these instances during the prior two administrations, you know, across a very different ideological valences with what's been going on lately. And so then I sort of said, well, you know, let's try to figure out why is this happening.

You know, A common complaint, a common sort of critiqua common defense of this new aggressiveness on the s g S part is that President Trump has been subject to an unprecedented number of nationwide injunctions. That's true descriptively, but that's not really what's going on in the Supreme Court. I mean, as last Friday's order helps the underscore, many

of these cases actually are not nationwide injunctions. And that's why I think we have to be careful to be nuanced about this and not just sort of jump at the superficial headlines like I think too many people have these days. So, Steve, we've been talking about the number of requests from the Trump administration for stays from lower court orders. Do you know how many they've actually won?

I did look at the success rate, So there have been, as I said, twenty four different applications from the Trump administration for stays, Counting last Friday's ruling in the public charge case. This is now the eleventh that was granted in full. Another three have been granted in part in the travel damp cases. So that's fourteen where at least part of the lower court decision has been stayed, Three were withdrawn by the government because circumstances changed while the

application was pending, and then seven have been denied. So it's a good batting average for this listener generals, not a perfect batting average. But I think the real key here is that the grants have tended to be in these close divisive contexts, where like Lass Friday, the votes were often five to four June. If you go back and look at the sixteen years of the Bush and Obama administrations, not one of the eight stay requests from the Bush Obama's Listeners General were met with a five

to four vote in either direction. And indeed, of the eight requests, only one provoked any dissents. So it's not just the volume that's increased, and it's not just that the Court is acquiescing in these requests more often. It's also that they've become much more ideologically charged and politically divisive.

And I think that's a lot of what Justice said a Mayor was reacting to, not just in her descent on Friday, but in her descent last September in the second Asylum band case, where she leveled similar charges against the majority. If there is even this appearance that the Supreme Court is bending the rules for the Trump administration, does it surprise you that Justice Roberts is still voting

with the conservatives in these matters? So I mean I should say, you know, the Chief Justice had actually joined the liberals in a couple of these, so you know, two of the ones that the Trump administration has lost, the Chief was one of the key votes with the with the lefties. But um, you know, I think again we have to separate Chief Justice Roberts the institutionalist from

Chief Justice Roberts the lawyer. John Roberts is actually one of the leading jurists with regard to the subtle doctrinal trend that I think is behind this shift, where you know, he saims that the government is irreparably harmed any time a statute is enjoined or a policy is enjoyed without ard to the conflicting impact on the public. So I think on the merits he actually is perhaps leading the charge in this respect. But and this is a point

I try to make in the paper. I think it would behoove him and the Court to actually say what's going on, because otherwise you do have the specter of partisan political bias as opposed to a doctrinal shift that June.

I don't think it is ultimately correct, but is at least something that could be defended on nonpartisan, non ideological terms, where if a majority of the Court issues an opinion setting out a new standard for stay applications when the government is the complaining party, presumably that standard will be

good for the next administration too. And the longer that this goes on without the Court saying anything, and the longer that there's no explication and no explanation of why there's such a disconnect between the lower courts and the Supreme Court on this technical the critical question of when the government's title to emergency relief, I think the more the Court is open to the very kinds of partisan bias charges that we've seen after in light of Friday's ruling,

President Trump asked for the recusal of not only Justice Sodamayor, but also of Justice Ruth Bader Ginsburg for a comment that she made about him when he was running in Does the Supreme Court have any rules for when the justices should recuse themselves? Yes, and no. I mean, the Supreme Court is the only federal court that's not bound by the relevant Federal Statute USC Section. You know, the justices do have their own sort of internal I guess

norms is probably better than rules about recusal. And every once in a while you'll see a justice write a short opinion to explain why they either did or did not choose to recuse in a particular case. But you know, this is a subject on which the justices keep their own company. And frankly, I mean, I think the President's

comments are rather wide of the mark. I mean, I think there are context in which we ought to be asking serious questions about whether the justices are hopelessly and irrevocably prejudiced in favor of or against the particular party. But if we started requiring the justices to recuse in any case in which we all had concerns that their minds are made up, we wouldn't have a court for very long, and we wouldn't have justices to hear most

of these cases. So, you know, I think the recusal conversation is really typical Trump in effort to rile up the base, but not in especially serious legal charge. So then you're saying that there are no reasons for so to Mayor or Ginsburg to recuse themselves in Trump cases. I mean, so first I should say I think these

are very separate cases. I mean, the argument, apparently for some do Mariorit to recuse herself is because of something she never actually said, which is the Fox News version of her descent from Friday, that she accused the majority of pro Trump bias. Never says that doesn't accuse him of that, And in any event, it's in an opinion. I actually think there's a stronger argument about some of the public comments that Justice Ginsburg has made about the President.

But she's apologized for them, and she has I think expressed regret at making them, And I do think we ought to be careful to distinguish between the propriety of the justices speaking out publicly about politicians, individuals in the news, cases in the news, etcetera, versus what they write in their job as justices, in their opinions. The notion that justice should ever be asked to recuse because they write a dissent where they are concerned that the majority is

tipping the scales in favor of an institutional litigant. I think it is a pretty dangerous path to go down, and why I would treat the Soda my Organs Row cases very differently. I don't think either of them have any need to recuse, but I think the Soda mir case is almost frivolous. Thinking back to Justice aunt And in Scalia, he wrote quite a few dissents that were fiery. That's right, I mean, I think folks should be careful

about what they wish for here. This is all happening at the same time as we are seeing reports in the news that Jenny Thomas, the wife of Justice Thomas, has been directly involved in efforts by the White House to purge the executive branch of employees who are not sufficiently loyal to the President. I don't think that's the reason why anyone should ask Justice Thomas to recuse from cases involving Trump. But this is a dangerous road to go down when you've got a Supreme Court of nine

justices with no backups. You know, in the lower courts, if the judge accuses, there are plenty of other judges to take their place. That's not true for the Supreme Court. And I think that really helps to underscore why the recusal conversation is often simply about messaging and not really substantive concerns that the justices are somehow more or less

able to discharge their duties in particular cases. And finally, the Philadelphia Bar Association has come out in a statement condemning recent unwarranted attacks on the rule of law and judicial independence, and Chief Justice roberts In came back with a surprising comment when Trump called a judge who ruled against an administration policy and Obama judge, we haven't heard anything from either Chief Justice roberts or Justice Sonya. So to Mayor, doesn't this call for a word from the Chief.

It certainly doesn't call for a words from justice of my arm just a of my ors who just keep doing her job and keep her head down and let people defend her. I was heartened by his statement. Um. I think it was a very deliberate and calculated statement on the Chief's part. I've been surprised at how little he has said since June, and I think, you know, we saw some of that during the impeachment trial in

the Senate. You know, the one time the Chief chose to sort of speak up was to chastise both sides for their lack of decorum. I think it would be helpful to have the Chief, if not the entire court somehow pushed back against these attacks on, for example, Judge Jackson in the Roger Stone case. But you know, the silence here, I think is understandable because this is not

something that Chief wants to be doing. I just think it is increasingly unfortunate because it is I think suggesting, perhaps incorrectly, that the President that he faces no consequences for publicly seeking to vilify judges who just happened to rule against him and for trying to basically bully judges into doing his bidding. And June in that respect, I don't think it's a coincidence that the President you know,

is on this campaign against justice. So domior in ginsburg Um with less than a month before the Supreme Court is going to hear the three cases about his financial record. Thanks so much for being on Bloomberg Lass Steve. That's Stephen Laddick, a professor at the University of Texas Law School. I'm June Grosso and this is Bloomberg