Justice Kavanaugh's attempt to re-brand how the Supreme Court handles emergency applications is belied by how the Supreme Court is actually handling emergency applications.
Justices Kavanaugh and Gorsuch (and the rest of the justices) should bear in mind the wisdom of one of the most capable and conscientious people ever to construe or apply our Constitution.
“The people of these United States are the rightful masters of both congresses and courts, not to over-throw the Constitution, but to over-throw the men who pervert that Constitution.”
Abraham Lincoln (shortly before he was elected president) Speech at Cincinnati, Ohio, September 17, 1859 (Constitution Day).
Someone described these interim-but-not-really rulings as the Court saying, “You can go ahead and drop the Ming vase - we’ll decide later whether smashing it is legal.”
Scott, interesting point. Your reminder makes me think that part of the point of the shadow docket rulings is to hide the line at which qualified immunity is drawn. "The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
Vague rulings about fuzzy lines lead to fuzzier lines, and woe betide the hapless district court judge who can’t figure out where the SC thinks the fuzz ends.
I’m neither a judge nor even a lawyer, but from a regular person’s point of view, there seems to be flagrant favoritism towards Trump who appointed the last 3 justices in irregular circumstances. McConnell shouldn’t have been able to block President Obama’s choice -Gorsuch. Kavanaugh should never have survived his confirmation hearing. Coney-Barrett (another inappropriate McConnell move) nomination&confirmation after presidential voting started. Also, Coney-Barrett book synopsis sounds as if she dangerously lacks self awareness. From my POV John Robert’s court is anti law insurrectionist.
I would call them corrupt bought-and-paid-for domestic terrorists.
I'm sure others will disagree, but at what point does "calling balls and strikes" or "not an opinion poll" morph into "no one's rights matter except mine"?
Because whatever that line is, Kavanaugh and Gorsuch have clearly joined Alito and Thomas" on the far side of it.
Justices Kavanaugh and Gorsuch obviously are more concerned with their own egos than with our Constitution. Article III established that all other federal courts are "inferior" to the "one supreme Court." But that is utterly irrelevant here. The Preamble and Article VI are controlling.
"We the People" did "ordain and establish [our] Constitution" (and constitute the three departments of national government) to "establish Justice" and "secure the Blessings of Liberty to ourselves."
The People clearly confirmed and emphasized that all courts and all judges are inferior to "the supreme Law of the Land." The "supreme Law of the Land" necessarily governs all conduct of all public servants. The "supreme Law of the Land" is our "Constitution, and [federal] Laws" that were "made in Pursuance" of our Constitution "and all Treaties."
Laws and other legal authorities below our Constitution (including judicial opinions and orders or executive branch officials, civil and military) must not only be made, but also implemented and enforced, in pursuance of our Constitution. This principle is expressed explicitly in Amendment XIV, Section 1 (no public servant has any power to "make or enforce any law which shall abridge [any] privileges or immunities of citizens of the United States'). That's the point of the principle in Article VI that all state and federal legislators and "all executive and judicial Officers" are not only bound by our Constitution, but also are "bound" to "support [our] Constitution" in all official conduct.
Such support is the vital principle behind every oath of every public servant. It is behind the president's oath in Article II emphasizing that the president's first, foremost and constant duty is to "preserve, protect and defend [our] Constitution" to "the best of [his] Ability." It is behind the oath of employees of the judicial department and of the executive department below the president prescribed by Congress in 5 U.S.C. 3331. For all federal judges, see also the additional oath at 28 U.S.C. 453.
Are we and lower court judges to accept that the shadow docket decisions are precedent, even if the order has little or no justification? The Supreme Court answers to no one? Do we have five tyrants instead of one?
The big issue I see here (reading the tea leaves on these shadow docket decisions that lack explication) is precisely that the Court is giving much too short shrift to the irreparable harm inherent in far too many of these cases. The balance of equities is way out of whack.
Appreciate your skipping past Justice Barrett today, but passing mention should be made that her book enriched her with a $2 million dollar advance according to credible sources.
And speaking of Justice Kavanaugh, his concurrence in today's decision by the Court (which included no other analysis to explain the decision) to stay the lower court's order (Noem v. Pedro Vasquez Perdomo, ET AL - ICE detention case) continues to make apparent the conservative majority's blatant bias in favor of the Trump administration. District Judge Maame Ewusi-Mensah Frimpong's initial decision, and the 9th US Circuit Court of Appeals upholding most of the decision, emphasized that ICE was detaining people "without reasonable suspicion". Kavanaugh's concurrence stating that ethnicity can be used as a '"relevant factor” when considered along with other salient factors', entirely misses the point the plaintiffs made that in a significant number of detentions, there were *no* other valid factors used. Now, whereas only 7 California counties were involved in the litigation, the Court's (unexplained) decision will now likely be read as a tacit approval for this to happen in other states/cities (like Chicago, for example).
BTW - whereas most of my guy friends are big on fantasy football teams, I personally tend to have fantasy teams for things like music bands and, yes, Supreme Court justices. Many of my Court slots are still in play, but I think I've got at least a couple that are near the top of the list, like Robert Jackson and David Souter. If I were President (that'd be the day...LOL), Prof. Vladeck - you'd definitely be given my very serious consideration. :0)
This analysis jibes perfectly with the call today by Contrarian Jen Rubin warning Roberts and his fellow revisionists. Here is my own comment.
Roberts has been given a cloak of respectability due to his whiteness, seeming rectitude, maleness, and education/upbringing. He has presented himself as crafted after a now-defunct model of American governance.
He could, yes, save his reputation and "his" court by taking a stand as head of the Third Branch, serving as a check and balance on the rampantly out-of-order Executive. That would require, first, that he is intellectually capable of analyzing this current, unprecedented governmental arrangement, and seeing its anti-democratic, anti-Constitutional intentions.
Second, and much harder apparently, would be to have the courage to assert his position as spokesperson for the Third Branch and defend vigorously and publicly the federal judiciary at all levels and forms.
I agree. Roberts should be defending the entire federal judiciary. He can't simply demand that we the people respect the Court, the Court must earn our respect, one case at a time.
We have many fine judges who are doing an amazing job under extraordinary pressure. The S Ct's job is to listen to them (carefully), not to use its constitutional position to pull rank.
It’s horrid and terrifying to have to say this, but reliance on SCOTUS to restrain Trump’s abuses of power is irrational. Today, the SCOTUS Star Chamber handed Trump two more big wins, overruling both the district courts and the appellate courts.
“We, The People,” need to realize that the courts will not save us and SCOTUS will not save us.
“We, The People” must save ourselves.
“We, The People,” must give up our complacent expectation that SCOTUS will save us and get on with the absolutely crucial business of figuring out the most effective and least destructive ways to save ourselves.
I suggest mass work stoppages of increasing frequency. First, once a month; then, twice a month; then, once a week; then, two days a week. On these “off days,” do everything you possibly can to avoid engaging in any unnecessary economic activity. Don’t work; don’t shop; don’t buy anything; don’t invest; don’t stream TV (unless it’s anti-Trump). Stay home, play outdoors with the kids; visit with neighbors; stay in bed all day with your spouse or lover. They can’t arrest us for that, can they?
Not everyone can do everything. But we all must do everything we personally can do, displaying the courage and taking the personal risks of a citizen intent on preserving our freedom. We have the power. We can do this without violence, but not without risk and suffering. The sooner we begin, the better.
Sounds like the majority would prefer lower court justices write “choose your own ending” rulings so SCOTUS could put them through their hidden “precedent application machine” and spit out the one it likes the most. Because apart from a load of “If…then” statements attempting to align with a variety of unseen explanations, the majority is kind of ensuring that lower courts cannot win. And I can’t help but think that the actual reasoning is an alignment with a preferred outcome which it would be scandalous to explain but would account for “irreparable harm” to the administration’s preferred outcome in the equities. (If we don’t stay the order, Project 2025 will be behind schedule, like a construction, or more likely a demolition project.)
P. S. I would love to be wrong! But there is no way to know and lots of reason to assume when we are left without explanation
The effects of the Emergency/Shadow docket is as “interim” as an amputation. Perhaps we can call it the “Coward’s docket” since it allows them to hide their reasoning and to decide by fiat, preserving their flexibility to do anything else they wish in any similar situation in the future.
,but here I'm thinking of the Supreme Court, reverses something the administration has done such as firing federal employees in a particular department, are there any compensatory damages? I mean if you're fired and there's no clear view of getting your job back in the short run you would be selling your house , possibly moving to another city , pulling your kids out of college , (possibly permanently ) abandoning your church, your position on various local boards and youth groups and on and on.
aside from the loss to the government of an experienced employee, what about the losses to the individual?
Amy Coney-Barrett recently said that the Executive Branch of Government has far more power than people realize. She also said that the court was writing not just for one president but for the Presidency and all those who will follow in the position. That immediately told me that the Roberts Court is trying to re-write the Constitution from their bench. No one has ever taught us that the Constitution was set up to give the President more power than the other two branches. Only Barrett says that.
The legal scholars’ irrational confidence in our failed legal system is making the citizenry complacent when it should be terrified. The courts will not save us. “We, The People,” will have to save ourselves.
looks like you wrote this before the latest Kavanaugh "precedential" "interim" ruling that racial profiling is fine and dandy and that citizens should just carry around their birth certificates or passports in case ICE wants to rough them up.
Justices Kavanaugh and Gorsuch (and the rest of the justices) should bear in mind the wisdom of one of the most capable and conscientious people ever to construe or apply our Constitution.
“The people of these United States are the rightful masters of both congresses and courts, not to over-throw the Constitution, but to over-throw the men who pervert that Constitution.”
Abraham Lincoln (shortly before he was elected president) Speech at Cincinnati, Ohio, September 17, 1859 (Constitution Day).
Someone described these interim-but-not-really rulings as the Court saying, “You can go ahead and drop the Ming vase - we’ll decide later whether smashing it is legal.”
Scott, interesting point. Your reminder makes me think that part of the point of the shadow docket rulings is to hide the line at which qualified immunity is drawn. "The doctrine of qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
Vague rulings about fuzzy lines lead to fuzzier lines, and woe betide the hapless district court judge who can’t figure out where the SC thinks the fuzz ends.
I’m neither a judge nor even a lawyer, but from a regular person’s point of view, there seems to be flagrant favoritism towards Trump who appointed the last 3 justices in irregular circumstances. McConnell shouldn’t have been able to block President Obama’s choice -Gorsuch. Kavanaugh should never have survived his confirmation hearing. Coney-Barrett (another inappropriate McConnell move) nomination&confirmation after presidential voting started. Also, Coney-Barrett book synopsis sounds as if she dangerously lacks self awareness. From my POV John Robert’s court is anti law insurrectionist.
I wouldn't call them anti-law or insurrectionist.
I would call them corrupt bought-and-paid-for domestic terrorists.
I'm sure others will disagree, but at what point does "calling balls and strikes" or "not an opinion poll" morph into "no one's rights matter except mine"?
Because whatever that line is, Kavanaugh and Gorsuch have clearly joined Alito and Thomas" on the far side of it.
Justices Kavanaugh and Gorsuch obviously are more concerned with their own egos than with our Constitution. Article III established that all other federal courts are "inferior" to the "one supreme Court." But that is utterly irrelevant here. The Preamble and Article VI are controlling.
"We the People" did "ordain and establish [our] Constitution" (and constitute the three departments of national government) to "establish Justice" and "secure the Blessings of Liberty to ourselves."
The People clearly confirmed and emphasized that all courts and all judges are inferior to "the supreme Law of the Land." The "supreme Law of the Land" necessarily governs all conduct of all public servants. The "supreme Law of the Land" is our "Constitution, and [federal] Laws" that were "made in Pursuance" of our Constitution "and all Treaties."
Laws and other legal authorities below our Constitution (including judicial opinions and orders or executive branch officials, civil and military) must not only be made, but also implemented and enforced, in pursuance of our Constitution. This principle is expressed explicitly in Amendment XIV, Section 1 (no public servant has any power to "make or enforce any law which shall abridge [any] privileges or immunities of citizens of the United States'). That's the point of the principle in Article VI that all state and federal legislators and "all executive and judicial Officers" are not only bound by our Constitution, but also are "bound" to "support [our] Constitution" in all official conduct.
Such support is the vital principle behind every oath of every public servant. It is behind the president's oath in Article II emphasizing that the president's first, foremost and constant duty is to "preserve, protect and defend [our] Constitution" to "the best of [his] Ability." It is behind the oath of employees of the judicial department and of the executive department below the president prescribed by Congress in 5 U.S.C. 3331. For all federal judges, see also the additional oath at 28 U.S.C. 453.
Are we and lower court judges to accept that the shadow docket decisions are precedent, even if the order has little or no justification? The Supreme Court answers to no one? Do we have five tyrants instead of one?
The big issue I see here (reading the tea leaves on these shadow docket decisions that lack explication) is precisely that the Court is giving much too short shrift to the irreparable harm inherent in far too many of these cases. The balance of equities is way out of whack.
Appreciate your skipping past Justice Barrett today, but passing mention should be made that her book enriched her with a $2 million dollar advance according to credible sources.
And speaking of Justice Kavanaugh, his concurrence in today's decision by the Court (which included no other analysis to explain the decision) to stay the lower court's order (Noem v. Pedro Vasquez Perdomo, ET AL - ICE detention case) continues to make apparent the conservative majority's blatant bias in favor of the Trump administration. District Judge Maame Ewusi-Mensah Frimpong's initial decision, and the 9th US Circuit Court of Appeals upholding most of the decision, emphasized that ICE was detaining people "without reasonable suspicion". Kavanaugh's concurrence stating that ethnicity can be used as a '"relevant factor” when considered along with other salient factors', entirely misses the point the plaintiffs made that in a significant number of detentions, there were *no* other valid factors used. Now, whereas only 7 California counties were involved in the litigation, the Court's (unexplained) decision will now likely be read as a tacit approval for this to happen in other states/cities (like Chicago, for example).
BTW - whereas most of my guy friends are big on fantasy football teams, I personally tend to have fantasy teams for things like music bands and, yes, Supreme Court justices. Many of my Court slots are still in play, but I think I've got at least a couple that are near the top of the list, like Robert Jackson and David Souter. If I were President (that'd be the day...LOL), Prof. Vladeck - you'd definitely be given my very serious consideration. :0)
This analysis jibes perfectly with the call today by Contrarian Jen Rubin warning Roberts and his fellow revisionists. Here is my own comment.
Roberts has been given a cloak of respectability due to his whiteness, seeming rectitude, maleness, and education/upbringing. He has presented himself as crafted after a now-defunct model of American governance.
He could, yes, save his reputation and "his" court by taking a stand as head of the Third Branch, serving as a check and balance on the rampantly out-of-order Executive. That would require, first, that he is intellectually capable of analyzing this current, unprecedented governmental arrangement, and seeing its anti-democratic, anti-Constitutional intentions.
Second, and much harder apparently, would be to have the courage to assert his position as spokesperson for the Third Branch and defend vigorously and publicly the federal judiciary at all levels and forms.
I agree. Roberts should be defending the entire federal judiciary. He can't simply demand that we the people respect the Court, the Court must earn our respect, one case at a time.
We have many fine judges who are doing an amazing job under extraordinary pressure. The S Ct's job is to listen to them (carefully), not to use its constitutional position to pull rank.
It’s horrid and terrifying to have to say this, but reliance on SCOTUS to restrain Trump’s abuses of power is irrational. Today, the SCOTUS Star Chamber handed Trump two more big wins, overruling both the district courts and the appellate courts.
“We, The People,” need to realize that the courts will not save us and SCOTUS will not save us.
“We, The People” must save ourselves.
“We, The People,” must give up our complacent expectation that SCOTUS will save us and get on with the absolutely crucial business of figuring out the most effective and least destructive ways to save ourselves.
I suggest mass work stoppages of increasing frequency. First, once a month; then, twice a month; then, once a week; then, two days a week. On these “off days,” do everything you possibly can to avoid engaging in any unnecessary economic activity. Don’t work; don’t shop; don’t buy anything; don’t invest; don’t stream TV (unless it’s anti-Trump). Stay home, play outdoors with the kids; visit with neighbors; stay in bed all day with your spouse or lover. They can’t arrest us for that, can they?
Not everyone can do everything. But we all must do everything we personally can do, displaying the courage and taking the personal risks of a citizen intent on preserving our freedom. We have the power. We can do this without violence, but not without risk and suffering. The sooner we begin, the better.
Sounds like the majority would prefer lower court justices write “choose your own ending” rulings so SCOTUS could put them through their hidden “precedent application machine” and spit out the one it likes the most. Because apart from a load of “If…then” statements attempting to align with a variety of unseen explanations, the majority is kind of ensuring that lower courts cannot win. And I can’t help but think that the actual reasoning is an alignment with a preferred outcome which it would be scandalous to explain but would account for “irreparable harm” to the administration’s preferred outcome in the equities. (If we don’t stay the order, Project 2025 will be behind schedule, like a construction, or more likely a demolition project.)
P. S. I would love to be wrong! But there is no way to know and lots of reason to assume when we are left without explanation
The effects of the Emergency/Shadow docket is as “interim” as an amputation. Perhaps we can call it the “Coward’s docket” since it allows them to hide their reasoning and to decide by fiat, preserving their flexibility to do anything else they wish in any similar situation in the future.
When a court
,but here I'm thinking of the Supreme Court, reverses something the administration has done such as firing federal employees in a particular department, are there any compensatory damages? I mean if you're fired and there's no clear view of getting your job back in the short run you would be selling your house , possibly moving to another city , pulling your kids out of college , (possibly permanently ) abandoning your church, your position on various local boards and youth groups and on and on.
aside from the loss to the government of an experienced employee, what about the losses to the individual?
Amy Coney-Barrett recently said that the Executive Branch of Government has far more power than people realize. She also said that the court was writing not just for one president but for the Presidency and all those who will follow in the position. That immediately told me that the Roberts Court is trying to re-write the Constitution from their bench. No one has ever taught us that the Constitution was set up to give the President more power than the other two branches. Only Barrett says that.
And then today - on the FTC and the racial profiling in LA immigration enforcement - it got much, much worse!!
SCOTUS gives two more big wins to Doomerism. Wake up, Steve.
https://www.stevevladeck.com/p/bonus-176-law-lawlessness-and-doomerism/comment/153577381/
The legal scholars’ irrational confidence in our failed legal system is making the citizenry complacent when it should be terrified. The courts will not save us. “We, The People,” will have to save ourselves.
https://www.nbcnews.com/politics/supreme-court/supreme-court-allows-trump-fire-ftc-commissioner-rcna229385
https://www.latimes.com/politics/story/2025-09-08/supreme-court-immigration-stops-los-angeles
looks like you wrote this before the latest Kavanaugh "precedential" "interim" ruling that racial profiling is fine and dandy and that citizens should just carry around their birth certificates or passports in case ICE wants to rough them up.