The Power of the Supreme Court’s Shadow Docket

29 5 minutes read

This is an edition of The Atlantic Daily, a newsletter that guides you through the biggest stories of the day, helps you discover new ideas, and recommends the best in culture. Sign up for it here.

In a recent ruling allowing the Trump administration to disassemble the Department of Education and fire nearly 1,400 federal workers, the Supreme Court did not answer a straightforward question: Why? In a separate ruling empowering the Trump administration to ban transgender troops from the military, at least for now, the Court once more offered no explanation. And when a majority of justices cleared the way for noncitizens to be deported to countries they aren’t from, such as South Sudan, their rationale was elusive yet again.

“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,” Quinta Jurecic, an Atlantic staff writer who covers America’s legal system, recently wrote. Though the justices are well within their rights to offer little to no explanation for emergency rulings through their “shadow docket,” they’ve begun issuing far more decisions this way in recent years, to the concern of legal experts. I spoke with Quinta to ask her about the power of the shadow docket and how the Supreme Court has responded to President Donald Trump’s policies.

Stephanie Bai: How would you characterize the Court’s approach to the Trump presidency?

Quinta Jurecic: The Court has definitely been solicitous of the administration, let’s say that. This pattern has been most visible on the Court’s emergency docket, also called the “shadow docket.” When a case is being litigated, often there’ll be this question of whether or not a policy should be implemented while litigation is continuing. A district court can block the policy from going into effect, and then the government can go to higher courts to try to get that block overturned. That will reach the Supreme Court on the shadow docket.

The Trump administration has been very aggressive in running straight to the Supreme Court’s shadow docket to overturn lower courts’ blocks on their policies, and the Court has been surprisingly willing to take the administration up on that. According to some numbers tabulated by Steve Vladeck, a law professor at Georgetown, the Court has issued 15 rulings since early April granting the Trump administration emergency relief. In seven of them, the justices didn’t provide any explanation at all for their decision, including in their recent ruling allowing the administration to dismantle the Department of Education.

Stephanie: What are the implications of the Supreme Court’s more frequent use of the shadow docket in recent years?

Quinta: If you imagine a typical Supreme Court case, what happens is that somebody sues, the case goes to the district court, they appeal, it goes to an appeals court, then only at the very end of the road does it reach the Supreme Court. And that can take years.

Because the Supreme Court is agreeing to hear these cases on its shadow docket, it’s stepping in before the underlying legal question is actually resolved. It’s allowing that policy to go into effect while the litigation continues. What is so strange about this dynamic is that it means that, for example, Trump is going to be able to fire roughly 40 percent of the workers at the Education Department before the courts have even determined whether he has the legal authority to do so.

Stephanie: It’s not hard to understand why the Trump administration keeps rushing cases to the Supreme Court, when it keeps winning. But why does the Court itself seem to prefer this approach?

Quinta: That’s a question that a lot of us who study courts and the law are asking ourselves. I think there is a decent argument that they’re kind of encouraging the Trump administration to keep coming to them because they’re so willing to take up these cases, instead of sending a signal that the government should slow down. Maybe they just want the government to win. Another possibility is that the Court is more conservative than a lot of the lower courts, so the conservative justices might feel like the lower courts aren’t getting it right. It’s difficult to say because the justices aren’t explaining their reasoning in many cases. Or they explain it in the broadest of strokes.

It’s been striking not only that the Court has been willing to give the Trump administration so many wins, but that it hasn’t even been bothering to explain itself. We’re at a moment where there is a lot of concern about the Supreme Court being politicized and how that affects the Court’s legitimacy. You would think that the justices would want to present their reasoning in a way that would make clear that they were acting according to legal principles rather than just handing the Republican Party a win. The puzzle is: Why are the conservative justices taking this approach? Do they not realize the effect that it has? Do they not care?

Stephanie: Trump has not been shy about his disdain for the American legal system. But is there a risk that the Supreme Court’s legitimacy could also be undermined by its own actions?

Quinta: So far, Trump has mostly confined his attacks to lower courts. He’s gone after the Supreme Court occasionally when they handed down a ruling that he didn’t like, especially in his first term, but now they’re handing him all of these victories. As you say, this sets up a dangerous situation for the Court, even though the conservative supermajority seems very confident that the Court will be able to maintain its power.

I’m reminded of the Twitter joke about the woman who voted for the Leopards Eating People’s Faces Party and is surprised when her face is eaten by a leopard. Trump is going after all of the other courts. Do the justices really think that he’s not going to turn on them? And once you have already damaged your own legitimacy with the public because you appear to have become a political actor, what support do you have left?

Related: