President Donald Trump’s long-running effort to question the legitimacy of jurists who rule against him reached a new summit overnight, with Trump calling for Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg to recuse themselves from all cases involving him.
He did so, though, based upon a Fox News segment that twisted Sotomayor’s words and made some dubious claims.
Trump’s tweets about the matter echo a series of points made on Laura Ingraham’s segment on Sotomayor’s dissent Monday night and came shortly after the segment aired.
He quoted a chyron that said Sotomayor had “accused GOP appointed Justices of being biased in favor of Trump.” He also suggested Sotomayor was trying to “shame” others into voting with her, which Ingraham and her guest, the Judicial Crisis Network’s Carrie Severino, talked about. He also criticized Sotomayor for not speaking up when Ginsburg criticized him as a “faker” when he was a candidate in 2016.
The reality of both Sotomayor’s dissent and the Ginsburg situation, though, bear little resemblance to Trump’s description.
“Sotomayor accuses GOP appointed Justices of being biased in favor of Trump,” the president tweeted. “@IngrahamAngle @FoxNews This is a terrible thing to say. Trying to “shame” some into voting her way? 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!”
Sotomayor did issue a rather stinging dissent in Wolf v. Cook County. She accused the court of too frequently granting stays of injunctions in the Trump administration’s favor, rather than letting issues play out in lower courts. As Stephen Vladeck wrote in November in the Harvard Law Review, the Trump administration has sought and won such stays much more frequently than previous presidents. Defenders of the effort have argued such stays are necessary because the lower courts are issuing overbroad injunctions against Trump Administration policies that effectively halt them nationwide.
The merits of that debate aside, Sotomayor did not at any point accuse the court’s more conservative justices of being “biased in favor of Trump.”
She did say somewhat provocatively that, “Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others.” That litigant is the federal government. She also said the Supreme Court “is partly to blame for the breakdown in the appellate process.”
“But make no mistake: Such a shift in the Court’s own behavior comes at a cost,” Sotomayor said. “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. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay.”
She argued that the court was more reluctant to stay executions of death-row inmates, even though the reason for awarding stays – the idea that declining to do so would lead to “irreparable harm” of some sort – is more severe in those cases. She said the court wasn’t requiring the Trump administration to sufficiently prove such irreparable harm would arise from cases such as Wolf v. Cook County even when the stakes are much lower.
“I fear that this disparity in treatment erodes the fair and balanced decision-making process that this Court must strive to protect,” Sotomayor wrote at the conclusion of her dissent.
Sotomayor is worried about the Supreme Court’s track record on this issue and how it has repeatedly inserted itself in cases earlier in the process than it would otherwise be involved. But she at no point suggests this is because of a personal or political bias. She might just as well believe the string of decisions is about the conservative majority on the court’s views on what constitutes “irreparable harm” or its general belief in how often stays should be used. She may think the justice are too deferential to the executive branch more generally and not just Trump or his administration. It’s difficult to say what she sees as being at the root here, because she never says it.
That doesn’t mean others won’t speculate about it, which is what Ingraham and Severino did Monday night.
Ingraham said the idea that judges should be above politics “proved too high a bar for liberal Justice Sonia Sotomayor. She issued a dissenting opinion Friday attacking in part her conservative colleagues.” She said Sotomayor had deigned to “attack the motives of your colleagues.”
Severino referred to Sotomayor’s “argument that conservative justices here are being biased.”
Again, this is not what Sotomayor said. She said the decisions favored the government too often; she did not speculate about motives.
Toward the end of the segment, Ingraham turned to Ginsburg’s comments about Trump in 2016.
“Sotomayor’s tirade reminds me of the fact that I don’t recall her being upset with the politics of one of her colleagues, Ruth Bader Ginsburg, when she said this about Trump,” Ingraham said, before playing the comments. “Boy, did Ruth Bader Ginsburg get a total pass on slamming a presidential candidate.”
If by a total pass she means that the editorial boards of The Washington Post and The New York Times denounced Ginsburg’s comments and that Ginsburg was forced to apologize, then it was a total pass. This reporter also repeatedly wrote about and spoke about the extraordinary and problematic nature of Ginsburg’s comments at the time. In the end, Sotomayor didn’t need to speak out publicly, because Ginsburg reversed course amid the backlash.
This nuance was lost on Trump. He was asked for details on Sotomayor’s dissent Tuesday morning in India and didn’t seem to be terribly familiar with the actual content of it.
When pressed by Fox News’ John Roberts on what was actually inappropriate about what Sotomayor wrote, Trump demurred.
“You know what the statement was, John,” Trump said.
Roberts noted that Sotomayor’s dissent seemed to focus more on the unusual granting of stays rather than the alleged bias of her colleagues.
“No I don’t think that was it,” Trump said. “I think what she did say – the way I look at it – she was trying to shame people with perhaps a different view into voting her way. And that’s so inappropriate.”
Because what kind of Supreme Court justice would try to convince other people on the court to vote with her by arguing they were doing the wrong thing?