Sotomayor Says Reasoning of Migrant Ruling ‘is Anyone’s Guess’

Justice Sonia Sotomayor criticized the rate of “entirely unexplained” emergency orders from the Supreme Court after it froze a judge’s ruling that temporarily barred federal agents from using racial or ethnic profiling in immigration sweeps in Los Angeles.

“In the last eight months, this Court’s appetite to circumvent the ordinary appellate process and weigh in on important issues has grown exponentially,” Sotomayor wrote Monday in a dissent joined by fellow liberal-leaning Justices Elena Kagan and Ketanji Brown Jackson. “Its interest in explaining itself, unfortunately, has not.”

The latest conservative majority decision, which will apply while the legal fight continues in a California district court, is “troubling,” Sotomayor said, noting it includes no guidance for judges or parties on whether the “key issue was standing, the merits, or the scope of relief, any one of which could have been the basis for the majority’s order.”

“For each of those complex issues, it will be anyone’s guess whether the majority thought there were evidentiary deficiencies, legal errors, or a combination of both,” She added. “This situation demands more.”

The dissent from the court’s first Latina justice, who said that she wouldn’t “stand idly by while our constitutional freedoms are lost,” adds to criticism over the court’s use of its so-called “shadow docket.” The Trump administration has repeatedly turned to the expedited decision-making process in an attempt to undo unfavorable rulings from district judges.

The court sided with the administration in another unexplained emergency order released on Monday. Chief Justice John Roberts allowed President Donald Trump’s firing of a Democratic member of the Federal Trade Commission to temporarily stand after a district judge ruled the administration flouted the law and ordered her reinstatement.

Kavanaugh, Sotomayor Clash

In the immigration case, the court paused a ruling that for now barred Immigration and Customs Enforcement agents from questioning and detaining people based solely on their ethnicity, language, occupation or presence at a particular location in the Los Angeles region.

The majority didn’t explain its decision but Justice Brett Kavanaugh did offer his own reasoning in a separate concurrence. Kavanaugh said the government would likely win the case, noting that the challengers to the government’s policy likely lacked standing to sue.

He also said the administration’s move to stop individuals for brief questioning about their immigration status likely didn’t violate the Fourth Amendment bar on unreasonable searches and seizures when considering the “totality of the circumstances.”

“Ethnicity alone cannot furnish reasonable suspicion,” he said. “However, it can be a ‘relevant factor’ when considered along with other salient factors.” He said people in the US lawfully may be questioned under these factors, but that they would be released after a “brief encounter,” a finding Sotomayor said was flawed.

“It is the Government’s burden to prove that it has reasonable suspicion to stop someone,” she said. “The concurrence improperly shifts the burden onto an entire class of citizens to carry enough documentation to prove that they deserve to walk freely.”

Kavanaugh in recent public remarks defended the justices’ handling of its emergency docket, noting congressional inaction was partly responsible for the rise in emergency requests. He also said he tries to make sure the ultimate opinions he writes are clear to the lower court judges tasked with interpreting them.