The Supreme Court Picks Trump Over the Rule of Law

The default assumption, at least according to the Supreme Court’s own precedents, is that the justices will rarely grant a stay out of deference to the lower courts. Sotomayor argued that the government had not done so here, even though the court failed both of those tests. On the irreparable harm question, she noted that the Trump administration had made the “facially absurd contention” that it is harmed “any time a court orders it temporarily to refrain from doing something it would like to do.”

That is apparently enough to suffice, however, since Sotomayor’s colleagues in the majority “[appear] to give no serious consideration to the irreparable harm factor” in Trump-related shadow docket cases these days, she said. If anything, Sotomayor pointed out, it is the plaintiffs and those like them who face irreparable harm here if they are sent to a strange country on a different continent that lacks the rule of law and suffers from endemic violence.

On the likelihood-of-success question, Sotomayor had even greater contempt for the Trump administration’s arguments. “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,” she wrote. Indeed, she noted, courts are supposed to decline to intervene like this in cases under the “clean hands” doctrine, which counsels courts to deny this kind of relief to litigants who don’t act in good faith.

“The government thus openly flouted two court orders, including the one from which it now seeks relief. 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 explained, quoting from precedent. “That principle is a bedrock of the rule of law. The government’s misconduct threatens it to its core.”