The Supreme Court capped off a busy week with two major late-Friday-afternoon rulings on emergency applications—and a harmless but nevertheless alarming glitch prematurely releasing today's orders.
What I don't understand is how the Court could issue orders favoring the government in the DOGE matters without some showing that DOGE actually exists. My understanding of the law is that the president can't simply create an administrative agency out of thin air, that some enabling legislation from Congress is necessary, and so DOGE is no more than a fiction. Yet the Court blows right past that critical issue and makes the assumption the news media constantly make: that there actually is such a thing as DOGE, that it has any more existence than Santa Claus and the tooth fairy.
Thank you, Ben, for your post. I've been trying to frame the question without luck and you did it for me. With the nebulous status of DOGE and questionable parameters of its existence, why is the Court allowing it to function in any way (e.g. accessing SSA records) until the more important questions are answered? In the ideal world DOGE will be judged as the fraud that it really is and be permanently relegated to the trash heap of history.
If you check either their Wikipedia page or the actual executive order "establishing" them, you'll see that it's actually just a rename of a previously-existing unit of government with some sub-teams added on. The unit was established by Obama in 2014 as part of the Executive Office of the President and has been funded by Congressional appropriations ever since then. (I don't know if Congressional approval was necessary, but if Congress incorporates an executive action into later legislation, it's considered to have been implicitly approved by them.) Even the continuing resolution funding the government right now allocates some money to them.
I don't like them, but there's never been any legal question that they exist. Who's in charge of them, yes, there's been questions. Whether they can legally access certain information, again, yes. Whether they can legally do all the things they sort-of claim to do (but also say they merely suggest to others), likewise. And so on and so forth. But if you're hoping for a magic backdoor to make them go away by arguing that they don't exist . . . I wish it were that simple. Nobody's making that argument in court because it doesn't hold water.
And, now the King and his four horsemen, Legislative, Judicial, Executive, and MAGA tell this Peasant that I have zero rights to know who has access to my SS number, account, etc!?
Adding to their "Constitution uninstall", the only savior I had left, the militar to their strength. They're now all helping Project 20-Fack the Peasants continue installing their "America". This is nothing more than a warning shot to any future protests. And, now that the Dems have become absolutely useless at this point, I'll repeat myself. Every single country has/has the exact type of government that the people deserve to have!
The pardoning of the j6th criminals along with the Kings chosen subjects pardons, are yet more lessons for present and future criminals to study, learn, and implement.
SMFH... Buckle up, we're in for a rough ride my future prisoners.
"The larger point, and the one that is by-now undeniable, is how much the Court’s 6-3 ideological split—which has yet to surface, at least respecting the judgment, in a single case on the merits docket—is dominating its handling of the Trump-related emergency applications. Fridays pair of rulings were the ninth and tenth by the full Court on Justice Department applications since April 4. In all ten of them, a majority granted at least partial relief to the Trump administration."
Your point seems... highly significant. So are we now in the SCOTUS land of "Lasciate ogne speranza, voi ch'intrate"?
I agree with Steve Vladeck’s implication that SCOTUS has become rankly partisan in favoring Republican administrations. This partisanship harms the Court’s jurisprudence, integrity, and legitimacy. We need to find a way to de-politicize the Court, and I believe we can do that by very gradually increasing the number of justices.
I propose gradually expanding the Supreme Court to 23 seats, so that, with more frequent turnover among a greater number of justices, a change of one justice would not be so momentous and politically-charged. With 23 justices, the court would become multi-polar, with several different judicial philosophies emerging and many different and changing jurisprudential coalitions forming around different issues. A multi-polar court would seem to be and would truly be less rankly partisan than the 5-4 and 6-3 divisions that we have had on controversial issues for the last few decades. These party-line votes on divisive issues make the Court seem like it is making judgments purely on the basis of politics, rather than on the basis of justice, law, and the Constitution.
Under my plan, one or two new seats could potentially be added in the third year of each 4 year presidential term, but only if the then-current president had previously appointed fewer than 3 justices during her entire presidency. Thus, if the current president had already put 2 justices on the court during her presidency, she would appoint one additional new justice during the third year of a presidential term. But if she had appointed only one justice or no justices up to that point in her presidency, she would get to fill two new seats in the third year of her current 4 year term. If she had already appointed 3 or more justices during her presidency, she would not be allowed to fill any new seats.
This scheme for adding new seats would help assure political balance during the expansion process, because, while this expansion process was underway, no president would be likely to appoint more than 3 or 4 justices during her presidency, and every president would get to appoint at least 2 justices even if elected to only one 4 year term. This process would continue until 12 new seats had been added, so it would take at least 24 years (6 presidential terms) to complete the expansion because a maximum of 2 new seats could be added during any 4 year presidential term. This scheme would be a good way to fairly and gradually de-politicize the court by making the departure of any one justice less momentous and by creating conditions for the court to become multi-polar, and therefore less partisan.
Currently, with justices appointed younger and living longer, we have the untenable situation in which one or two justices—as a practical matter—hold unelected power to cast frequent decisive votes on politically-charged issues for three or more decades. Although the law is by nature conservative in the sense that it should not change so often that it loses the stability essential to justice, the Court must have some capacity and inclination to respond to changing social and political realities or it will become moribund and lose its legitimacy. Expanding the number of justices so that new minds join the Court more frequently will reinvigorate the Court’s internal debates, enhance the court’s democratic legitimacy, while at the same time reducing politicization by diminishing the political significance of any single nomination.
I believe this expansion of the court could be done through legislation and would not require a constitutional amendment.
Very interesting. But in addition to a process like this, I still think life-time appointments should be abolished. A term of 20 years seems to me appropriate. No more than that.
I agree. But term limitswould require a Constitutional amendment, which would be difficult to pass, whereas my plan could be done by legislation and would have an immediate attractiveness to the party in power since it would be the first beneficiary of the change. I hope when the Dems get back in power, they’ll consider some reform to depoliticize SCOTUS.
The thing that struck me, as a non-lawyer, about the Abrego Garcia indictment is that he appears to have been charged with participating in the exact same sort of "conspiracy" to transport undocumented workers that Ron DeStantis and Greg Abbott also entered into. Other than Abbott and Cos... um ... DeStantis costing their taxpayers a lot more money it is hard for me to tell the difference.
Later this week, I'm planning to quote (with attribution) the paragraph that contains this sentence: "In all ten of them, a majority granted at least partial relief to the Trump administration." But just to be clear, is that true of the AARP ruling? What was the partial relief to the Trump Adm there?
"But ICE and some other law enforcement personnel responded with heavy application of force — not lethal weapons, at least not yet, but lots of tear gas, rubber bullets, and so on....What it looks like is an attempt to create confrontations that can be used to impose something that, for practical purposes, amounts to martial law."
When the term is over and things are less busy — a general retrospective of the emergency docket could be interesting. In particular, Kavanaugh's concurrence in Labrador v Poe seems to have been the turning point, when the median justices decided they were ok with a muscular emergency docket. I keep going back to it in these cases.
I read a certain book referenced by a Jeopardy! question, and there was a shift both when someone became president and when there was a change in the personnel on the Court.
This helps explain why discussions of procedural reforms, including those that might be explored in another book referenced on game shows in the future, do not satisfy some people.
CERTAIN justices are a problem. If we don't want "court packing" (which only Republicans are allowed to do), and just tweak the rules so the conservative justices cause a bit less trouble, it is not surprising some won't be satisfied.
Why can't SCOTUS post a statement on its website --instead of peons like me needing to rely on secondhand accounts of the statement -- about the Order List glitch? These public information office statements should not just be given to the press. That's a bad policy.
What I don't understand is how the Court could issue orders favoring the government in the DOGE matters without some showing that DOGE actually exists. My understanding of the law is that the president can't simply create an administrative agency out of thin air, that some enabling legislation from Congress is necessary, and so DOGE is no more than a fiction. Yet the Court blows right past that critical issue and makes the assumption the news media constantly make: that there actually is such a thing as DOGE, that it has any more existence than Santa Claus and the tooth fairy.
Thank you, Ben, for your post. I've been trying to frame the question without luck and you did it for me. With the nebulous status of DOGE and questionable parameters of its existence, why is the Court allowing it to function in any way (e.g. accessing SSA records) until the more important questions are answered? In the ideal world DOGE will be judged as the fraud that it really is and be permanently relegated to the trash heap of history.
Indeed. This president merging flesh with the richest man in the world is a crime of genetic corruption.
If you check either their Wikipedia page or the actual executive order "establishing" them, you'll see that it's actually just a rename of a previously-existing unit of government with some sub-teams added on. The unit was established by Obama in 2014 as part of the Executive Office of the President and has been funded by Congressional appropriations ever since then. (I don't know if Congressional approval was necessary, but if Congress incorporates an executive action into later legislation, it's considered to have been implicitly approved by them.) Even the continuing resolution funding the government right now allocates some money to them.
I don't like them, but there's never been any legal question that they exist. Who's in charge of them, yes, there's been questions. Whether they can legally access certain information, again, yes. Whether they can legally do all the things they sort-of claim to do (but also say they merely suggest to others), likewise. And so on and so forth. But if you're hoping for a magic backdoor to make them go away by arguing that they don't exist . . . I wish it were that simple. Nobody's making that argument in court because it doesn't hold water.
And, now the King and his four horsemen, Legislative, Judicial, Executive, and MAGA tell this Peasant that I have zero rights to know who has access to my SS number, account, etc!?
Adding to their "Constitution uninstall", the only savior I had left, the militar to their strength. They're now all helping Project 20-Fack the Peasants continue installing their "America". This is nothing more than a warning shot to any future protests. And, now that the Dems have become absolutely useless at this point, I'll repeat myself. Every single country has/has the exact type of government that the people deserve to have!
The pardoning of the j6th criminals along with the Kings chosen subjects pardons, are yet more lessons for present and future criminals to study, learn, and implement.
SMFH... Buckle up, we're in for a rough ride my future prisoners.
"The larger point, and the one that is by-now undeniable, is how much the Court’s 6-3 ideological split—which has yet to surface, at least respecting the judgment, in a single case on the merits docket—is dominating its handling of the Trump-related emergency applications. Fridays pair of rulings were the ninth and tenth by the full Court on Justice Department applications since April 4. In all ten of them, a majority granted at least partial relief to the Trump administration."
Your point seems... highly significant. So are we now in the SCOTUS land of "Lasciate ogne speranza, voi ch'intrate"?
Question: Does Garcia and others who have been mistreated have a likely case for lawsuits for damages and large sums?
Alas, no. The Supreme Court has effectively closed the door to damages claims for constitutional violations by federal officers:
https://www.stevevladeck.com/p/130-the-trump-administration-goes
I agree with Steve Vladeck’s implication that SCOTUS has become rankly partisan in favoring Republican administrations. This partisanship harms the Court’s jurisprudence, integrity, and legitimacy. We need to find a way to de-politicize the Court, and I believe we can do that by very gradually increasing the number of justices.
I propose gradually expanding the Supreme Court to 23 seats, so that, with more frequent turnover among a greater number of justices, a change of one justice would not be so momentous and politically-charged. With 23 justices, the court would become multi-polar, with several different judicial philosophies emerging and many different and changing jurisprudential coalitions forming around different issues. A multi-polar court would seem to be and would truly be less rankly partisan than the 5-4 and 6-3 divisions that we have had on controversial issues for the last few decades. These party-line votes on divisive issues make the Court seem like it is making judgments purely on the basis of politics, rather than on the basis of justice, law, and the Constitution.
Under my plan, one or two new seats could potentially be added in the third year of each 4 year presidential term, but only if the then-current president had previously appointed fewer than 3 justices during her entire presidency. Thus, if the current president had already put 2 justices on the court during her presidency, she would appoint one additional new justice during the third year of a presidential term. But if she had appointed only one justice or no justices up to that point in her presidency, she would get to fill two new seats in the third year of her current 4 year term. If she had already appointed 3 or more justices during her presidency, she would not be allowed to fill any new seats.
This scheme for adding new seats would help assure political balance during the expansion process, because, while this expansion process was underway, no president would be likely to appoint more than 3 or 4 justices during her presidency, and every president would get to appoint at least 2 justices even if elected to only one 4 year term. This process would continue until 12 new seats had been added, so it would take at least 24 years (6 presidential terms) to complete the expansion because a maximum of 2 new seats could be added during any 4 year presidential term. This scheme would be a good way to fairly and gradually de-politicize the court by making the departure of any one justice less momentous and by creating conditions for the court to become multi-polar, and therefore less partisan.
Currently, with justices appointed younger and living longer, we have the untenable situation in which one or two justices—as a practical matter—hold unelected power to cast frequent decisive votes on politically-charged issues for three or more decades. Although the law is by nature conservative in the sense that it should not change so often that it loses the stability essential to justice, the Court must have some capacity and inclination to respond to changing social and political realities or it will become moribund and lose its legitimacy. Expanding the number of justices so that new minds join the Court more frequently will reinvigorate the Court’s internal debates, enhance the court’s democratic legitimacy, while at the same time reducing politicization by diminishing the political significance of any single nomination.
I believe this expansion of the court could be done through legislation and would not require a constitutional amendment.
Very interesting. But in addition to a process like this, I still think life-time appointments should be abolished. A term of 20 years seems to me appropriate. No more than that.
I agree. But term limitswould require a Constitutional amendment, which would be difficult to pass, whereas my plan could be done by legislation and would have an immediate attractiveness to the party in power since it would be the first beneficiary of the change. I hope when the Dems get back in power, they’ll consider some reform to depoliticize SCOTUS.
I see. Good point.
The thing that struck me, as a non-lawyer, about the Abrego Garcia indictment is that he appears to have been charged with participating in the exact same sort of "conspiracy" to transport undocumented workers that Ron DeStantis and Greg Abbott also entered into. Other than Abbott and Cos... um ... DeStantis costing their taxpayers a lot more money it is hard for me to tell the difference.
Later this week, I'm planning to quote (with attribution) the paragraph that contains this sentence: "In all ten of them, a majority granted at least partial relief to the Trump administration." But just to be clear, is that true of the AARP ruling? What was the partial relief to the Trump Adm there?
The application in A.A.R.P. wasn't filed *by* the Trump administration; the government was the respondent there.
I'll be looking for your quote posting, about the SCOTUS. Please be sure to share it here when you've done so. Thank you.
It will probably be oral, on the next Lawfare Live podcast, which are typically held on Friday at 4pm. thanks for your interest!
"But ICE and some other law enforcement personnel responded with heavy application of force — not lethal weapons, at least not yet, but lots of tear gas, rubber bullets, and so on....What it looks like is an attempt to create confrontations that can be used to impose something that, for practical purposes, amounts to martial law."
Paul Krugman
June 10, 2025
When the term is over and things are less busy — a general retrospective of the emergency docket could be interesting. In particular, Kavanaugh's concurrence in Labrador v Poe seems to have been the turning point, when the median justices decided they were ok with a muscular emergency docket. I keep going back to it in these cases.
Wouldn’t have guessed you were a Rockies fan.
Thank you!
I read a certain book referenced by a Jeopardy! question, and there was a shift both when someone became president and when there was a change in the personnel on the Court.
This helps explain why discussions of procedural reforms, including those that might be explored in another book referenced on game shows in the future, do not satisfy some people.
CERTAIN justices are a problem. If we don't want "court packing" (which only Republicans are allowed to do), and just tweak the rules so the conservative justices cause a bit less trouble, it is not surprising some won't be satisfied.
Why can't SCOTUS post a statement on its website --instead of peons like me needing to rely on secondhand accounts of the statement -- about the Order List glitch? These public information office statements should not just be given to the press. That's a bad policy.