Ball seven

Alexander Bickel famously argued — in defense of the Supreme Court refusing to hear a case about the constitutionality of bans on interracial marriage even though they were required to by statute at the time — that while the Court should be principled when deciding cases on the merits, it was fine for it to be politically strategic when manipulating its docket. (Gerald Gunther replied that this meant that the Court to be 100% principled 20% of the time.) As with all grand theories of constitutional interpretation, the effort to come up with some kind of neutral principle that could constrain Supreme Court decisions on the merits was itself inherently doomed. But one thing we can take from it is that the way the Court handles its power to grant appeals is an excellent window into its political nature:

In December 2023, Special Counsel Jack Smith asked SCOTUS to grant cert before judgement to hear Trump’s immunity appeal. The court rejected that request and didn’t issue its immunity decision until July 2024. Trump’s federal cases never made it to trial before the November 2024 election.

[image or embed]— Anna Bower (@annabower.bsky.social) Sep 22, 2025 at 8:21 PM

I mean, your clerks can always come up with some arrant nonsense in the vague form of law to defend anything you want to do if it comes to that. But with the shadow docket you don’t have to work that hard — lightly editing pompous law-like blogs is kinda dull, after all, and Harlan Crow says that Monte Carlo is nice this time of year.