Wednesday's ruling in Boyle isn't the first time the Court has given precedential effect to an unsigned order, but it's the first time it tried to explain *why,* for reasons that ... fail to persuade.
First, the OIP (DoJ branch for FOIA) is without a Director and I cannot find information on the Acting Director. DOGE was also Freedom From Information, seems. If I had to guess, CJ Roberts either has no faith in the remaining staff, OR the acting leadership has a Conflict of Interest with Amerika Erste/America First and Roberts doesn't want another COI headache to give Democrats more fuel.
Second, I know I am not judicial material because I'd react to "unsigned, no opinion, emergency docket orders as precedent" with extreme sarcasm. I'd base my decisions on the number of left-handers among the parties, even-vs-odd numbers of Presbyterians, etc. as a total mockery of the process. If I were a Supreme, though...I'd save such questions for oral arguments, to mock Alito to his face.
Why do you think the dissenters aren’t making these points in dissenting from the orders? I know Justice Kagan has spoken about the lack of explanation elsewhere, and her dissent in Boyle talks about accumulating executive power, but I can’t remember any dissent lately that points to the impossible task these orders give the lower courts. Is this just a matter of them holding their fire? And if so, for what?
It's a good question, and I don't have a great answer. Justice Jackson has made this point a bit in some of her dissents--especially how the Supreme Court's behavior is really throwing lower-court judges under the bus. But I wonder if there's some hesitancy to group all district court judges together...
it seems to me that boyle isn't meant to chastise the lower courts for failing to balance equities correctly or establish a general rule as to the interpretation of brief emergency orders, but rather to establish (for those who missed it) that the discussion of n'ken factors in wilcox really was just code for "humphrey's executor is dead"
That’s right. In the days before the handing down of the Boyle ruling, the SG had written
two letters (not briefs) alerting the Court to the fact that lower courts were not slavishly following Wilcox. See 20250718112013945_25A11 Boyle letter.pdf. and 20250723110014318_Letter 7-23-2025 pdf.pdf. Then the Court ruled in Boyle that its handling of a stay motion in Wilcox was controlling law for all similar cases, meaning cases that adhered to Humphrey’s Executor as still extant law (except maybe for the Federal Reserve.)
The criticism here is "like cases" is unacceptably vague for district courts to follow IF Humphrey's Executor is still on the books. CJ Roberts wants to keep Wall Street happy by protecting Jerome Powell from a random firing, so he can't full replace Humphrey's yet, and probably doesn't have a strong majority opinion on how, either.
i think "wants to keep wall street happy" is understating the importance of keeping the federal reserve independent. handing control of u.s. monetary policy to trump would be extraordinarily risky and could have severe economic ramifications that would affect just about everyone, not just shareholders. if roberts understands the stakes involved, he's worrying about torches and pitchforks, not disappointed investors
I have had this very discussion -- about the Court essentially disregarding the equitable factors for granting stays -- with co-counsel is several cases.
The SC seems to treat these factors as not applicable to cases involving the US government; the equities always should be deemed to favor the executive branch, not likely to be overcome just because someone or other will be irreparably harmed by executive actions.
Begging the question - what are the irreparable harms the government is presumably going to sustain if relief is not granted? Has the SCt told us? Surely the SCt is not saying the executive branch is harmed whenever it does not get its way. Is it?
No, it's broader than that; it's anything that is potentially a hot-button political issue.
(And even in US government cases, they give the factors lip service.). What's worse, it seems to be infecting lower courts, at least the Fifth Circuit, where most of my practice is, and where we've endured a number of these lawless stay orders.
The Emergency Docket seems to provide a method to implement specific views without the inconvenience of having to justify them with precedent, fact, or law. To that end, I have to wonder if the Emergency Docket orders, issued without briefs or detailed reasoning, are a deliberate strategy intended to allow the Supreme Court to review and decide any issue, whether ripe for review or not, simply by fiat.
This is a really important point: One need not think that the justices are acting in bad faith to think that this kind of behavior can make it *look* that way...
“Because I said so” is not a good answer and is entitled to no respect, but only ridicule. Unfortunately, the Supreme Court has ventured into that domain. Why? Laziness? More likely because they have no good answers. Sadly, the Court has become corrupt and there’s no point in pretending otherwise.
As to the last paragraph ( . . . it is a development that is not only going to further fray the already deteriorating relationship between the Supreme Court and lower federal courts . . . ), the ruling is also a development that is going to further support the belief that the majority of justices are ruling based on political motivations. The repeated failure to rule based traditional equitable factors only magnifies that interpretation.
I'm getting a sinking feeling that basically this is unfixable. Fundamentally the Court is playing Calvinball and the law or Constitution or precedent is irrelevant to how a case is decided, particularly if the present Administration or its allies are a party to the case. I desperately want to be wrong. And the thing is, even if Congress and the White House change hands, it's not like the present Court is the sort not to just summarily block attempts at changing this by legislation. As a Constitutional amendment is functionally impossible to be ratified by the requisite number of states in the present political environment...Welp?
Again: I want to be wrong. But I'm looking at the evidence *I* can see and not seeing reasons why what I wrote above does not accurately describe the situation.
SCOTUS is the worst kind of micromanager for lower courts: providing zero guidance or explanation but expecting compliance, ready to jump in and “manage” the outcome should it not satisfy their unexpressed desires. That’s no way to run…anything, let alone the one, sole institution that MUST explain itself in full.
The Court's message seems to be "accept that we consider Humphrey's Estate v. US be vacated as of Trump's inauguration date. proceed at all times accordingly."
I think "not for the Fed" for certain, but the explanation of the distinctions will be some Originalist/ Historical mumbo-jumbo nonsense which will again amount to "because we said so."
The Court seems to be permitting letting the country experience autocracy as it keeps open the questions on the timetable for formal merits opinions so the Court can see how the autocracy sells in the midterms.
The Court avoids discussing the balance of the equities when it cannot justify its conclusion in writing--i.e., finding for the side it favors. Easier to say, "strong arguments on both sides."
First, the OIP (DoJ branch for FOIA) is without a Director and I cannot find information on the Acting Director. DOGE was also Freedom From Information, seems. If I had to guess, CJ Roberts either has no faith in the remaining staff, OR the acting leadership has a Conflict of Interest with Amerika Erste/America First and Roberts doesn't want another COI headache to give Democrats more fuel.
Second, I know I am not judicial material because I'd react to "unsigned, no opinion, emergency docket orders as precedent" with extreme sarcasm. I'd base my decisions on the number of left-handers among the parties, even-vs-odd numbers of Presbyterians, etc. as a total mockery of the process. If I were a Supreme, though...I'd save such questions for oral arguments, to mock Alito to his face.
Why do you think the dissenters aren’t making these points in dissenting from the orders? I know Justice Kagan has spoken about the lack of explanation elsewhere, and her dissent in Boyle talks about accumulating executive power, but I can’t remember any dissent lately that points to the impossible task these orders give the lower courts. Is this just a matter of them holding their fire? And if so, for what?
It's a good question, and I don't have a great answer. Justice Jackson has made this point a bit in some of her dissents--especially how the Supreme Court's behavior is really throwing lower-court judges under the bus. But I wonder if there's some hesitancy to group all district court judges together...
it seems to me that boyle isn't meant to chastise the lower courts for failing to balance equities correctly or establish a general rule as to the interpretation of brief emergency orders, but rather to establish (for those who missed it) that the discussion of n'ken factors in wilcox really was just code for "humphrey's executor is dead"
That’s right. In the days before the handing down of the Boyle ruling, the SG had written
two letters (not briefs) alerting the Court to the fact that lower courts were not slavishly following Wilcox. See 20250718112013945_25A11 Boyle letter.pdf. and 20250723110014318_Letter 7-23-2025 pdf.pdf. Then the Court ruled in Boyle that its handling of a stay motion in Wilcox was controlling law for all similar cases, meaning cases that adhered to Humphrey’s Executor as still extant law (except maybe for the Federal Reserve.)
The criticism here is "like cases" is unacceptably vague for district courts to follow IF Humphrey's Executor is still on the books. CJ Roberts wants to keep Wall Street happy by protecting Jerome Powell from a random firing, so he can't full replace Humphrey's yet, and probably doesn't have a strong majority opinion on how, either.
i think "wants to keep wall street happy" is understating the importance of keeping the federal reserve independent. handing control of u.s. monetary policy to trump would be extraordinarily risky and could have severe economic ramifications that would affect just about everyone, not just shareholders. if roberts understands the stakes involved, he's worrying about torches and pitchforks, not disappointed investors
Just like Nken itself is as well.
is it? or is there just a new exception when the party enjoined is the executive branch?
I have had this very discussion -- about the Court essentially disregarding the equitable factors for granting stays -- with co-counsel is several cases.
The SC seems to treat these factors as not applicable to cases involving the US government; the equities always should be deemed to favor the executive branch, not likely to be overcome just because someone or other will be irreparably harmed by executive actions.
Begging the question - what are the irreparable harms the government is presumably going to sustain if relief is not granted? Has the SCt told us? Surely the SCt is not saying the executive branch is harmed whenever it does not get its way. Is it?
But yes, that seems to be it!!
No, it's broader than that; it's anything that is potentially a hot-button political issue.
(And even in US government cases, they give the factors lip service.). What's worse, it seems to be infecting lower courts, at least the Fifth Circuit, where most of my practice is, and where we've endured a number of these lawless stay orders.
I have learned so much from you. Thank you for spending time doing these discussions.
Super helpful explanation and analysis, thank you!
Steve, another wonderful piece of analysis on all scores. One question about your description of the North Dakota case. What is this AO you speak of?
Sorry -- the AO is the "Administrative Office of the U.S. Courts," which is the body with administrative responsibility for the federal courts.
The Emergency Docket seems to provide a method to implement specific views without the inconvenience of having to justify them with precedent, fact, or law. To that end, I have to wonder if the Emergency Docket orders, issued without briefs or detailed reasoning, are a deliberate strategy intended to allow the Supreme Court to review and decide any issue, whether ripe for review or not, simply by fiat.
even if their intentions are entirely pure, the temptation to abuse procedure will only grow the more the emergency docket approach is normalized
This is a really important point: One need not think that the justices are acting in bad faith to think that this kind of behavior can make it *look* that way...
“Because I said so” is not a good answer and is entitled to no respect, but only ridicule. Unfortunately, the Supreme Court has ventured into that domain. Why? Laziness? More likely because they have no good answers. Sadly, the Court has become corrupt and there’s no point in pretending otherwise.
As to the last paragraph ( . . . it is a development that is not only going to further fray the already deteriorating relationship between the Supreme Court and lower federal courts . . . ), the ruling is also a development that is going to further support the belief that the majority of justices are ruling based on political motivations. The repeated failure to rule based traditional equitable factors only magnifies that interpretation.
I'm getting a sinking feeling that basically this is unfixable. Fundamentally the Court is playing Calvinball and the law or Constitution or precedent is irrelevant to how a case is decided, particularly if the present Administration or its allies are a party to the case. I desperately want to be wrong. And the thing is, even if Congress and the White House change hands, it's not like the present Court is the sort not to just summarily block attempts at changing this by legislation. As a Constitutional amendment is functionally impossible to be ratified by the requisite number of states in the present political environment...Welp?
Again: I want to be wrong. But I'm looking at the evidence *I* can see and not seeing reasons why what I wrote above does not accurately describe the situation.
It makes advocacy, ahem, challenging, shall we say.
SCOTUS is the worst kind of micromanager for lower courts: providing zero guidance or explanation but expecting compliance, ready to jump in and “manage” the outcome should it not satisfy their unexpressed desires. That’s no way to run…anything, let alone the one, sole institution that MUST explain itself in full.
The Court's message seems to be "accept that we consider Humphrey's Estate v. US be vacated as of Trump's inauguration date. proceed at all times accordingly."
But not for the Fed, maybe?
I think "not for the Fed" for certain, but the explanation of the distinctions will be some Originalist/ Historical mumbo-jumbo nonsense which will again amount to "because we said so."
The Court seems to be permitting letting the country experience autocracy as it keeps open the questions on the timetable for formal merits opinions so the Court can see how the autocracy sells in the midterms.
What is WRONG with the lower courts? Where are their tea leaves? Where is their Ouija Board? /s
It seems that The Supreme Court is telling them nothing more helpful than: "No, no. You're wrong. Guess again."
The Court avoids discussing the balance of the equities when it cannot justify its conclusion in writing--i.e., finding for the side it favors. Easier to say, "strong arguments on both sides."