Amy Howe:
It didn’t do the same because the Trump administration didn’t ask the justices to block the orders in their entirety. And Justice Sotomayor, in her dissent, said that the reason that the federal government didn’t come to the Supreme Court asking the justices to block the order in their entirety is because, to do that, it would have to show that the president’s executive order, she said, was likely constitutional.
And, as she said, six judges, six courts had found that the order was unconstitutional. And so this was gamesmanship, was what Justice Sotomayor said, by the federal government coming on this narrow ground, just on the issue of universal injunctions. And she sort of chastised the majority for playing along with it.
And she said essentially that the Supreme Court shouldn’t endorse this idea that, somewhat along the lines of what Amanda just said, when you have these policies that she believes are plainly unlawful, you shouldn’t have to wait until the issue sort of winds its way all the way through the courts before you can get relief from it.
