Last week, the Supreme Court voted, 5-4, to allow President Donald Trump’s “public charge” rule to take effect. This rule makes it more difficult for immigrants to obtain green cards, as well as some visas, if they use public assistance programs, like food stamps.
The case, Wolf v. Cook County, might have made news on its own: the Trump administration knows that beating up on powerless and desperate people excites the sick xenophobes who still call themselves “Republican.” It also presented yet another opportunity for centrist talking heads to chastise liberals who defend brown immigrants who need food.
But the case crossed over from legal news to the national spotlight because Justice Sonia Sotomayor, in dissent, wrote a stinging rebuke explaining how the Supreme Court is biased in favor of the Trump administration. Sotomayor put her Republican colleagues on blast, not just for rubber-stamping Trump’s rule change but also for the way they did it. Sotomayor accused Republicans on the court of putting their “thumbs on the scale” for the Trump administration and criticized them for rushing to hear this case on emergency appeal when they so regularly admonish inmates who are about to be put to literal death for failing to file their appeals in a timely manner.
This is the kind of dissent that should be made in opposition to the court’s treatment of Trump administration arguments. And it should have made the media take notice. When a justice of the Supreme Court warns that the court has ceased acting as an independent check on the administration, that should sound a loud, eardrum-busting alarm.
But that narrative was muted, because Donald Trump tweeted. The president took to Twitter to call for Sotomayor (and Justice Ruth Bader Ginsburg, because why not?) to recuse themselves “on all Trump, or Trump related, matters!” Like a pack of Pavlovian dogs, the media followed the scent of Trump’s tweets away from the bigoted rule at issue in the case, and the legal point Sotomayor was making in her dissent, into the tangled underbrush the media is most comfortable in.
The mainstream press presented Sotomayor’s dissent and Trump’s tweets as “both sides” of an argument about judicial bias, while making no attempt to understand, much less explain, the larger legal and ethical implications of the dissent. Many sources even referred to Sotomayor’s dissent as “comments,” as if writing a dissent in a major Supreme Court case was the same as Sototmayor’s shooting off her mouth after a couple of glasses of wine at Outback Steakhouse.
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As usual, presenting “both sides” is itself an indication of media bias in favor of President Trump, because it accepts his framing of the issue. Wolf v. Cook County was not the latest episode of “Trump v. Sotomayor,” or even “Trump v. the Judiciary.” The correct way to frame Sotomayor’s dissent should have been: “The Republicans v. the Rule of Law.” That’s because had anyone bothered to read the dissent, they would have seen that Sotomayor was trying to explain how the administration and the conservatives on the court are conspiring to subvert the normal way that appellate litigation works.
Wolf came to the Supreme Court on an emergency appeal. Trump’s public charge rule had already been blocked by a lower court in Illinois, pending a full adjudication of the issue on the merits. The Trump administration appealed to the Supreme Court, saying that the government would be “irreparably harmed” if their bigoted little rule change was held up while the case went through the normal process of arguments, rulings, and appeals.
That argument is bogus. A temporary injunction just means that the government can’t change the law until it proves that what it wants to do is legal. That’s not “irreparable harm”; that’s just what happens when the government is sued. The court should hear an expedited appeal only if there is an actual emergency. The rule Trump wants to change has been in place for 20 years. There’s no emergency that requires immediate attention. Immigrants who receive public assistance are not the ones who decided to put Mike Pence in charge of praying away the coronavirus.
Courts are able to distinguish real emergencies from fake ones all the time. If you show up in traffic court and say, “Yes, that’s my car on the speed camera, but I ran the light because my wife was in labor,” you’re probably going to get out of your ticket. But if you say, “I ran the red light because I was running late for my nose job,” you’re going to have to pay up.
It’s not hard to see that changing the public charge rule was not a real emergency.
Back when conservatives had principles, leaving the law in place pending a full hearing on the merits was a fairly standard “conservative” principle. Under the Trump administration, conservatives on the Supreme Court have been granting these kinds of fake emergency appeals all the time. But only when Trump asks for them. When Democrats want something to be done on an expedited basis, like the enforcement of a congressional subpoena for witness testimony or tax returns, the Supreme Court isn’t willing to rush things. In front of this Republican-controlled Supreme Court, normal rules apply for Democrats; special rules apply for the Trump administration.
This was the bias Sotomayor was driving at in her dissent. Here’s what she wrote:
First, the Government has come to treat “th[e] exceptional mechanism” of stay relief “as a new normal.”… 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. And with each successive application, of course, its cries of urgency ring increasingly hollow…
Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others.
For the media to summarize this criticism as Sotomayor “battling” Trump is both reductive and misleading. It is objectively true that the Trump administration resorts to emergency appeals as an option of first resort. It is objectively true that the current Supreme Court grants these requests from the Trump administration more than they do from any other litigant. It’s not too much to ask the media to accurately convey the facts of Sotomayor’s dissent, instead of throwing Sotomayor and Trump into a fact-free Thunderdome because they can’t be bothered to assess the validity of Sotomayor’s claims.
The media refused to have the argument Sotomayor wanted them to have and instead took the bait Trump left for it. That, perhaps, could be explained by mere laziness. But the way the media carried out Trump’s bidding is malpractice. Because if we’re going to do “both sides” on the judicial bias debate, then talking about liberal women like Sotomayor and Ginsburg without talking about the bias displayed by conservative men like Clarence Thomas, Samuel Alito, and alleged attempted rapist Brett Kavanaugh is just bad journalism.
This very term, Justices Alito and Kavanaugh took a meeting and posed for a picture with a member of the National Organization of Marriage, an anti-LGBTQ group that has filed a brief in a case the court is considering right now. This is textbook unethical. But where was the media discussion about whether Alito and Kavanaugh should recuse themselves from the critical issue of whether LGBTQ workers are protected by the Civil Rights Act?
Similarly, you cannot have a serious conversation about Supreme Court recusals without addressing the repeated, yet always unrequited, calls for Clarence Thomas to recuse himself from cases because of the overtly partisan actions of his wife, Ginni Thomas. Ginni Thomas has a long career of lobbying on behalf of conservative causes, many of which end up on her husband’s desk as court cases. In November 2000, she was busy collecting résumés for potential George W. Bush appointees, while Thomas was busy handing the presidency to Bush in Bush v. Gore. A decade later, she lobbied against Obamacare as Thomas tried to declare Obamacare unconstitutional in NFIB v. Sebelius. Now, according to a New York Times report, she’s advising Trump on which administration officials are “disloyal” and deserve to be fired, while Thomas will eventually have to rule on whether Trump’s loyal allies can be compelled to testify once House Judiciary v. McGahn makes its way to the court.
Nobody holds conservatives to any standard of ethics or propriety over their pro-Trumpian bias. But Sotomayor writes something in a dissent—writing dissents being an entirely normal and ethical part of her job—and the media allows Trump to spin it into a conversation about bias against him by key members of the judiciary. That’s not even coverage of “both sides”—that’s coverage of Trump’s side to the exclusion of objective reality.
One of the reasons the court has been allowed to operate for the benefit of Trump is that reporters are generally terrible at covering the court. They don’t understand the law and don’t care to. They don’t understand the history of the court, and thus have no ability to put its current Trumpian excesses into the proper historical context. They’re so desperate to cover both sides equally that they’ll put bad-faith arguments from Federalist Society lawyers, wackadoodle arguments from Alan Dershowitz, or terrifying authoritarian arguments from Attorney General William Barr on the same footing as the opinions of the overwhelming majority of lawyers who disagree with them. And they’re never more than one Trumpian tweet away from reframing a law that has existed for decades along whatever lines Trump decrees.
Sotomayor’s dissent was not simply a shot across the bow at Donald Trump, his administration, or his court. It was an alarm sounded to alert the media. It was a plea to notice what is going on and cover it appropriately. The court is biased in favor of the Trump administration. Sotomayor explained how, using words she hoped were small enough for the media to understand.
The mainstream media didn’t get the message. Her alarm was drowned out by a couple of Trump tweets. Sotomayor’s dissent elucidated how the court, as an institution, is failing. But the media has already failed.
