Justice Sonia Sotomayor, the Supreme Court’s senior liberal, slammed the Trump administration’s handling of immigration matters in a fiery dissent Monday, accusing her colleagues of “rewarding lawlessness” by supporting the administration’s most recent emergency appeal.
Sotomayor’s scathing 19-page dissent came in a case in which the court’s majority supported the administration’s decision to deport certain migrants to countries other than their home country, including South Sudan, with little notice.
Her opinion, which was joined by the court’s other two liberals, was much broader in scope, criticizing the administration’s overall approach to federal courts.
Sotomayor wrote that President Donald Trump’s administration had “openly flouted two court orders,” and warned about the long-term consequences of siding with the Department of Homeland Security in the cases.
People photograph the US Supreme Court at dusk on June 10 in Washington, DC.
“Even if the orders in question had been mistaken, the government had a duty to obey them until they were ‘reversed by orderly and proper proceedings,'” Sotomayor wrote in her concurrence. “That principle is the foundation of the rule of law.” The government’s misconduct jeopardizes it to its core.”
Sotomayor wrote that the Supreme Court is enabling the administration’s actions.
“This is not the first time the court closes its eyes to noncompliance, nor, I fear, will it be the last,” Sotomayor wrote in an essay. “Yet each time this court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law.”
Her dissent was all the more striking given that the majority offered no explanation for its decision. That is often the case on the Supreme Court’s emergency docket, but the majority has recently weighed in more frequently to explain its decisions.
Despite Trump’s vociferous – and private – criticisms of the judiciary and, at times, the Supreme Court itself, his second administration has won far more emergency appeals to the court this year than it has lost.
The order issued Monday marked the tenth time the court granted Trump’s request on the emergency docket, though a few of those cases resulted in a mixed win for the administration.
Sotomayor’s harshest criticism was directed at the notion that the Trump administration has attempted to circumvent lower court orders.
In this case, she wrote, the DHS attempted to fly six migrants from various countries to war-torn South Sudan on short notice, despite a lower court injunction that put similar removals on hold.
These migrants have been held at a US military base in Djibouti for several weeks while their cases are being resolved.
“The government’s assertion that these deportations could be reconciled with the injunction is wholly without merit,” Sotomayor said.
“Given its conduct in these proceedings, the government’s posture resembles that of the arsonist who calls 911 to report firefighters for violating a local noise ordinance,” the dissenting attorney writes.
The Trump administration claimed that a lower court’s order requiring officials to provide them with an opportunity to claim fear of torture under federal law went beyond legal bounds and complicated foreign policy.
The administration claimed that the migrants sent to third countries had significant criminal records and represented the “worst of the worst” of illegal immigrants in the United States.
The migrants’ lawyers have refuted that claim.
The Convention Against Torture, ratified by the Senate in 1994, generally prohibits deportation or extradition to countries where a migrant may be tortured.
The law is unclear about how an administration is supposed to make that determination and what procedural rights the migrant in question has.
Humanitarian organizations describe the situation in South Sudan, where some of the migrants are headed, as dire.
The United Nations has issued a warning about food insecurity in the country, which is also experiencing political instability and increased violence. The migrants came from Cuba, Vietnam, and Laos.
The 1st US Circuit Court of Appeals rejected the government’s request to pause a lower court ruling that halted the policy in May. This decision came amid reports of plans to send migrants to Libya, a country known for mistreatment of detainees and ongoing civil unrest. The Trump administration filed an appeal with the Supreme Court on May 27.
Sotomayor, President Barack Obama’s first Supreme Court nominee, has been one of the most vocal critics of the Trump administration in public. She spoke at a March event in Washington, advocating for a “fearlessly independent” judiciary and expressing concern about changing standards and norms. She made no specific mention of Trump during her remarks.
“Once norms are broken,” she told me at the time, “then you’re shaking some of the foundation of the rule of law.”
