In the three weeks since the US Senate acquitted President Trump of high crimes and misdemeanors, he has waged a vengeful and alarming assault on the nation’s democratic institutions.
He’s politicized the Department of Justice (with the assistance of Attorney General William Barr); publicly weighed in on the trial of his longtime adviser Roger Stone, who was sentenced this month to more than three years in prison for interfering in Congress’s investigation into Russian meddling in the 2016 election; and even verbally attacked a juror in the case. He’s put Richard Grenell, a political ally with no intelligence experience, at the helm of the nation’s spy agencies, and now his administration is systematically working to rid the federal bureaucracy of any dissenting voices.
But Trump’s war on democracy predates impeachment; in few places has its impact been more corrosive than the federal courts. The president, along with Senate majority leader Mitch McConnell, has seeded the federal judiciary with conservative ideologues seemingly more beholden to the Republican Party than the law.
Last Friday, Supreme Court Justice Sonia Sotomayor laid bare the extent to which the high court, in particular, is “putting a thumb on the scale in favor of” the Trump administration.
Sotomayor offered a fierce dissent in Wolf v. Cook County, a case involving the Trump administration’s efforts to block migrants from entering the United States by allowing immigration officials to turn away anyone deemed “likely at any time to become a public charge.”
Under the new rule, officials may consider issues such as a lack of proficiency in the English language or the likelihood a person may receive public benefits, such as housing assistance or food stamps. Close to 70 percent of the 5 million individuals who received a green card in the past five years would have been affected under the proposed change.
The rule, like so many of those involving the Trump administration and immigration, is a refutation of the Emma Lazarus poem, which adorns the Statue of Liberty, “Give me your tired, your poor, your huddled masses yearning to breathe free."
But Sotomayor’s dissent had less to do with the particulars of the rule and more to do with the fact that the Court is even weighing in on the issue. Already two federal courts have stopped the rule — one in the fall that blocked it nationally and the other, more recently, in Illinois.
The Supreme Court has now stayed both decisions, allowing them to go forward as federal courts litigate the issue.
As Sotomayor pointed out, not only is it unusual for the government to circumvent the appeals process and ask the high court for a stay, it’s even more unusual for it to be granted. According to Steven Vladeck, a University of Texas law professor, in three years, the Trump administration has asked for emergency stays on nearly two dozen occasions. In the previous 16 years, the government made only eight such requests.
Yet the administration has won full or partial victories in close to two-thirds of these decisions — often with legal rationales that seem to be at direct odds.
For example, in the first public charge case, two members of the conservative majority (Justices Neil Gorsuch and Clarence Thomas) complained about the use of a nationwide injunction in staying a lower court’s order. But in the Illinois case, they granted the stay even though it involved only one state.
If all of this sounds like legal gobbledygook, allow me to put things in more concrete terms: The Supreme Court has repeatedly taken the unprecedented step of granting one client, the Trump administration, legal relief that upends the usual federal appeals process.
“I fear this disparity in treatment,” said Sotomayor, “erodes the fair and balanced decision-making process that this Court must strive to protect.” And as she pointed out in her dissent, the Court is far less forgiving when it comes to death penalty cases, where the harm from not granting a stay is permanent.
Though one could argue this reflects a shift in the Court’s thinking on grants of judicial relief, it’s hard to escape the conclusion that this is merely partisanship in judicial form — especially since the Court has offered little explanation for its actions. And it’s a case bolstered by the actions of Trump and Senate Republicans.
By constantly bragging about the appointment of conservative judges and using it as a political talking point for the party’s most committed supporters, the GOP has lost any benefit of the doubt on the issue. One can’t brag about having remade the courts with a conservative bent and then play “see no evil, hear no evil” when their judges make decisions that disproportionately — and suspiciously — benefit the president who appointed them.
A court that has lost its image of nonpartisan rectitude — and appears to be actively embracing it — will not maintain its legitimacy in the eyes of the American people. Actually, it’s worse — all courts will lose the veneer of legitimacy, and Americans will have little confidence that legal decisions will be based on merit.
The federal courts have long served as the ultimate check on unconstitutional laws and actions by Congress and the president — and they’ve long been viewed as one of the most trustworthy of government institutions, though the numbers are trending downward. What happens when decisions are made along partisan lines and Americans believe they won’t receive a fair hearing if they plead their case before a judge of a different political persuasion? Quite simply, America’s democratic institutions will no longer be guided by the rule of law.
Michael A. Cohen’s column appears regularly in the Globe. Follow him on Twitter @speechboy71.