How can you make Trump king? The shadow docket knows
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Vladeck has more on last week’s decision by the Supreme Court to allow Trump’s illegal construction of a new White House wing to continue, most likely in the end until it’s too late to do anything about it:
Late Friday afternoon, Chief Justice Roberts issued a one-sentence administrative stay keeping Judge Richard Leon’s injunction against above-ground construction of the new White House ballroom on hold “pending further order” of the Chief Justice or the Court. (In English, Roberts allowed ballroom construction to continue.) There was no reasoning, no vote count, and no dissent—because, as I’ve explained before, these kinds of “administrative” stays are issued by a single justice (the “circuit justice” responsible for the lower courts from which the case came) to buy time for the full Court to act.
The problem with Roberts’s administrative stay isn’t that it was unexplained; it’s that no defensible explanation for it exists. Other than a March 2024 concurrence by Justice Barrett (which was about administrative stays issued by courts of appeals), the justices have never publicly identified any criteria for an “administrative” stay, as opposed to a stay pending appeal. But irreparable harm has to be at least part of the equation. And there’s just no universe in which a party is “irreparably” harmed by a temporary pause in construction; indeed, it wouldn’t be a construction project without unplanned, temporary pauses.
For quirky procedural reasons, it’s possible that Roberts’s Friday afternoon intervention isn’t necessarily a harbinger of how the full Court is going to rule (I’m skeptical, alas). But whether it is or not, the real takeaway from the ballroom case, at least at this juncture, is that it’s long past time for the justices to publicly articulate criteria for when they should (and shouldn’t) issue “administrative” stays—and, even more importantly, to follow them.
There is absolutely no even theoretical value to a high appellate court that so frequently changes the policy baseline through unreasoned ordered and ipse dixits.