A Court without law
By Steve Vladeck has a useful chart summarizing the Court’s use of the shadow docket under Trump II:
As we discussed yesterday, Trump is 15-for-15 since April 4, with only three majority opinions and 7 with literally not one word of juficatory reasoning. And we’re not talking about minor issues here, but stuff like Trump trying to unilaterally abolish the Department of Education and nullify the Fourteenth Amendment.
As Quinta Jurecic observes, the lack of reasoning is in itself an authoritarian show of power:
Yesterday—almost exactly a week after the Court lifted a lower court’s block on Trump’s plans to fire thousands of federal employees—a majority of the justices decided to give the president the go-ahead for a different set of mass layoffs. Last week, the Court provided a handful of sentences that vaguely gestured at why it might have allowed the administration to move forward. This week, it offered nothing at all. There’s something taunting, almost bullying, about this lack of reasoning, as if the conservative supermajority is saying to the country: You don’t even deserve an explanation.
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Given the potentially devastating effects of the Supreme Court’s ruling on congressionally mandated programs, it’s all the more galling that the majority didn’t bother to provide even a cursory explanation of its thinking. This terseness has become common as the Court has scaled up its use of emergency rulings—rulings that, it’s hard not to notice, have a striking tendency to align with the Trump administration’s priorities. Stephen I. Vladeck, a law professor at Georgetown University and an authority on the shadow docket, tallied the Education Department order as the 15th since early April in which the Court has granted Trump emergency relief, and the seventh in which the justices have provided not a word of explanation. (Until recently, the shadow docket was used far more rarely, and only for truly urgent matters.) Do the conservative justices feel that the president really doeshave the legal authority to destroy a Cabinet department on his own? Or perhaps they believe that the plaintiffs lacked the ability to bring the case at all in federal court? Maybe the reason was something else altogether. There’s no way to know.
This silence is damaging, both to the legitimacy of the Court and to the rule of law. The judiciary is a branch of government that is meant to provide reasons for its actions—to explain, both to litigants and to the public, why judges have done what they have done. This is part of what distinguishes law from the raw exercise of power, and what anchors the courts as a component of a democratic system rather than setting them apart as unaccountable sages. With a written opinion, people can evaluate the justices’ reasoning for themselves. Without it, they are left to puzzle over the Court’s thinking like ancients struggling to decipher the wrath of gods in the scattering of entrails.
When John Roberts’s predecessor and spiritual mentor Roger Taney was infuriated because of the devastating nature of the dissents in Dred Scott, his unethical response was to spend weeks after the ruling was presented orally expanding and revising his opinions without showing the revisions to the other justices. (Taney’s misbehavior compelled Benjamin Curtis, one of the two dissenters, to resign before the end of the year at age 48.) The only reason the Supreme Court’s current reactionary bloc wouldn’t do this is that they’re way too lazy and contemptuous of the very idea of public accountability, despite having four full-time clerks do to the actual writing.