Living up to its infamous moniker, the Supreme Court is increasingly issuing unsigned and unreasoned emergency docket rulings that allow President Donald Trump to wield unilateral authority over the government.
Monday’s shadow docket ruling marked the 15th time the justices granted an emergency appeal from Trump, and the seventh time the majority has done so with no explanation at all.
Court watchers are growing increasingly frustrated with the unexplained and seemingly contradictory decisions, warning that the justices are feeding into discourse concerning their bias for the Trump White House.
“Now, more than ever, that ought to be an impression the justices are ill-inclined to reinforce,” Steve Vladeck, a law professor at Georgetown University, wrote. “And yet, here we are — with the seventh different completely unexplained grant of emergency relief to the Trump administration in just the last 10 weeks, and yet another one that is going to have massive real-world effects long before the justices ever confront whether what the government is doing is actually lawful.”
Almost all of the court’s rulings on Trump’s appeals were split ideologically with the three liberals in dissent. Legal experts say the decisions illuminate a fundamental disagreement between the two sides over how to review emergency appeals.
Georgetown law professor Frederick Lawrence said the conservative wing is presuming that executive actions are lawful until proven otherwise. In contrast, Lawrence said, the liberal justices are balancing the administration’s likelihood of success and the potential harms that could come with implementing it
“The conflict we’re seeing in so many of these cases that the conservatives are taking the position that the presumption is in favor of executive action unless there’s an overwhelming reason not to, and the dissenters are looking at it the point of view of the harm that will be done to not just the individual people…but to the department that was created by Congress,” Lawrence said.
Neal McCluskey, the director of the Cato Institute’s Center for Educational Freedom, resonated with the conservatives’ analysis. McCluskey questioned how the risk of Trump’s order could be assessed before it had gone into effect.
“The way you discover efficiencies often is, well, you try and do this in a different way than you’ve done it before, and that might mean with fewer people,” McCluskey said. “What you might find is that, well, you just had too many people working on it, many of them were redundant, and you could get the job done with the same number of people.”
Although almost always in the minority, the liberal justices have shaped the public’s understanding of the court’s shadow docket rulings in a series of stinging dissents. In the Education Department appeal, Justice Sonia Sotomayor called out Trump for using mass terminations to effectively gut the department without congressional approval.
She said her colleagues were either “willfully blind” or naive to the ruling’s threat to the Constitution’s separation of powers.
“The majority apparently deems it more important to free the government from paying employees it had no right to fire than to avert these very real harms while the litigation continues,” Sotomayor wrote. “Equity does not support such an inequitable result.”
Justice Ketanji Brown Jackson similarly lambasted the court’s decision to greenlight Trump’s additional firings across the civil service, stating that the administration was carrying out a massive restructuring of the federal government.
Unlike their liberal colleagues, the conservative majority rarely explains its shadow docket decisions. Since the justices aren’t ruling on the merits of the appeals on the emergency docket, Lawrence said sometimes it’s OK for the court not to explain its decisions.
“But if you put that in the context of letting the executive go forward, regardless of what the lower court’s opinion was, then you have a problem,” Lawrence said. “Lower courts wonder what difference does it make what we do if we enter this opinion and it’s just going to be stayed.”
Without guidance from the justices, legal experts are also left to make inferences about the high court’s decisionmaking process, and court watchers are increasingly seeing Trump as the key to success.
Vladeck, who wrote “The Shadow Docket,” compared the justices’ ruling on Trump’s Education Department terminations to their actions on President Joe Biden’s student loan forgiveness plan. Both cases questioned whether plaintiffs had standing to challenge the federal government’s policies, however, the justices kept Biden’s policy on pause while allowing Trump’s to proceed.
Ultimately, the high court ruled that most of the challengers to the debt forgiveness plan didn’t have Article III standing. Vladeck said the best explanation for Monday’s ruling in Trump’s case was that the justices think Trump will prevail on standing as well.
“If that’s true, then we have this rather obvious contrast — where serious standing objections were not enough to justify emergency relief when it was the Biden administration looking to put its student loan debt relief plan back into effect, but where (to my mind, weaker) standing objections were enough to justify allowing the president to effectively strangle a critically important federal agency (and to defeat the various acts of Congress standing that agency up and giving it responsibilities it will now struggle to discharge),” Vladeck wrote.
It’s not just legal experts who see incongruities in what executive policy warrants emergency intervention. Sotomayor said the Trump administration “has the Supreme Court on speed dial.”
Lawrence said the high court majority seemed concerned about the harms of not allowing the Trump administration to keep its promises to the voting public. While the justices’ pause is temporary, the consequences of their decisions might not be.
“Six months or a year from now, after the case works its way all the way through the district court and up through the court of appeals and up to the Supreme Court, if it turns out the plaintiffs were right that they shouldn’t have let all those people go, they shouldn’t have dismantled entire department, it’s going to be almost impossible to put it back together.”
Mass firings across the department could disrupt the student financial aid structure that has guaranteed education access for a broader swath of the United States. Schools could also struggle with accreditation, Lawrence said, which maintains standards in higher education across the country.
“In the long term, we will fundamentally alter the arc of their lives and limit the productivity they can have as members of the society, ” Lawrence said. “So it’s a very short-sighted policy.”
