183. The Missing Defenses of the Court's Behavior

Rather than knocking down straw men or attacking their critics, the justices (and their defenders) would do well to explain why the sharpest criticisms of the Court's recent behavior are *wrong.*

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Every Monday morning, including holidays like today, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

Although the Court made plenty of news last week, perhaps the biggest headline was Saturday’s remarkable New York Times story—reporting the results of a survey of dozens of federal judges, many of whom were sharply critical of the Supreme Court’s recent behavior on emergency applications, especially in Trump-related cases. Quoting from the story:

In interviews, federal judges called the Supreme Court’s emergency orders “mystical,” “overly blunt,” “incredibly demoralizing and troubling” and “a slap in the face to the district courts.” One judge compared their district’s current relationship with the Supreme Court to “a war zone.” Another said the courts were in the midst of a “judicial crisis.”

The story touched off quite a nerve among the Court’s right-wing defenders—who have done everything from contesting the survey’s methodology (including by conflating the difference between a skewed sample and a skewed sample size); to accusing the judges who participated (a group that includes a bunch of Republican appointees) of unethical—if not impeachable—misconduct.

I wanted to use today’s “Long Read” not to get into the weeds of the Times’s reporting, but rather to use that reaction to help illustrate a broader point—which is how much the defenses of the Court’s recent behavior in Trump-related cases rest on some combination of these kinds of attacks on the critics and the knocking down of straw men (like in Justice Barrett’s appearance yesterday on Fox News Sunday). Folks who are genuinely interested in attempting to persuade those who don’t already agree with them that there’s nothing of concern in the Court’s behavior would do well to actually respond to the criticisms rather than attacking the critics or caricaturing their concerns.

To that end, below the fold, I aim to summarize, especially for those who may not have read prior issues of this newsletter, exactly what those criticisms are.

But first, the (other) news.

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On the Docket

The Merits Docket

In addition to holding the first six arguments of the October 2025 Term, the Court last week added one more case to its docket (a technical but important dispute about the scope of appeals after plea bargains in criminal cases); and denied hundreds of cert. petitions in the regular Order List out of the Long Conference.

The “news” here, such as it is, is the combination of the relatively slow pace of new cert. grants (even relative to recent terms), and the complete absence of separate writings respecting last Monday’s denials. Perhaps more of both are coming, but for those looking for anecdotal evidence that the justices are spending at least somewhat less capital on the merits docket relative to the emergency docket than has been the norm in recent years, one could potentially read these small data points in that light.

The Emergency Docket

Speaking of the emergency docket, the Court last week handed down its first two rulings of the October 2025 Term—both in high-profile but non-Trump-related denials of emergency relief. The first came Monday in Google v. Epic Games, the latest chapter in a long-running dispute over access to the Android app store in which the justices, over no public dissents, refused to pause the effect of the lower courts’ rulings for Epic (the manufacturer of Fortnite, among other games). And the second came Wednesday in Hamm v. Sockwell—the Alabama capital case in which the state was asking the justices to prevent the Eleventh Circuit’s mandate from going into effect, and in which Justice Thomas had issued an “administrative” stay while the full Court considered Alabama’s request. In the end, it rejected it over no public dissents, albeit with the caveat that “The denial is without prejudice to a reapplication if a new trial is imminent.”

In addition to the Trump administration’s still-pending application in the gender-identity-on-passports case, the Court is also sitting on emergency applications in the international child custody dispute I flagged last week; from Mississippi death-row inmate Charles Ray Crawford; from Florida death-row inmate Samuel Lee Smithers; and from Alex Jones—who is asking the justices to freeze the enforcement of the $1.44 billion defamation judgment entered against him for false claims related to the Sandy Hook shooting.

The Court has also received an application from Andrew Hess—a Michigan man indicted for making terroristic threats by, among other things, proclaiming “Hang Joe for Treason” and suggesting other election officials should likewise be hanged during an Oakland County election recount in 2023. Hess is seeking to enjoin his state criminal prosecution, but the lower federal courts refused to do so. I mention his application only because, for some reason, Justice Kavanaugh has ordered the defendants in the federal action to respond (by 4 p.m. this Friday). Why the Court would even consider getting involved in pre-emptively blocking a single state’s criminal prosecution of a single private defendant is … beyond me.

The Week Ahead

Turning to this week, the Court is officially closed today for the federal holiday. We expect a regular Order List from the Court at 9:30 ET tomorrow, followed by the justices re-taking the bench for two days of oral argument—including Wednesday’s much-anticipated re-argument in the Louisiana redistricting cases.

It’s too early, of course, for any rulings in argued cases. But it stands to reason that at least some of the pending emergency applications, especially in the two capital cases, will be resolved this week.

Miscellaneous

Finally, as noted above, perhaps the biggest Court-related headline is Saturday’s New York Times story—reporting the results of a survey that the Times conducted of district judges in those jurisdictions in which cases challenging Trump administration policies have been brought. The story has provoked sharp criticism on the right—on everything from the Times’s methodology to the motives of the judges who participated in the survey. But that criticism, whether by design or not, misses the real headline—yet again, federal judges (who, just to be clear, were, appointed by presidents of both parties) are breaking norms to publicly criticize the Supreme Court’s behavior—not its bottom lines—in the Trump-related emergency applications.

It’s worth reading the story in full. But however much you may wish to criticize the judges who participated in the survey, or the Times for how it conducted and reported it, I don’t see how that undermines the substance of what those judges said—or the significance of the fact that they’re saying it. To borrow the obvious metaphor, pulling a fire alarm is worthy of reproach—except when there’s actually a fire. And those who would defend the Court’s behavior (including, it should be said, the justices who are speaking publicly) should be pressed, at the very least, to provide more thorough explanations for why those shouting “fire” at the present moment—including an unprecedented number of lower-court judges—are, indeed, mistaken.

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The One First “Long Read”: Criticizing the Critics

For as long as folks have been writing about the Supreme Court’s recent (i.e., post-2016) behavior on emergency applications, we’ve seen two common responses from the justices themselves and their most ardent public defenders: One set of responses focuses on knocking down straw men—usually by misdescribing what the underlying criticisms are. The second set attacks the criticisms (and the critics), instead of engaging with the substance of the critiques.

Whatever else might be said about them, what both types of arguments fail to provide is anything by way of an affirmative defense of the Court’s conduct. Indeed, it should go without saying that a proper defense of the Court’s behavior would be one that took the criticisms on their own terms and then explained why they’re unavailing.

Against that backdrop, I wanted to devote today’s “Long Read” to both the responses on the right to Saturday’s New York Times story and to Justice Barrett’s comments yesterday on Fox News Sunday. Justice Barrett, specifically, when pressed to respond to the criticisms of the Court’s behavior on Trump-related emergency applications, offered the relatively tepid response that “If we wrote a long opinion, it might give the impression that we have finally resolved the issue, and in none of these cases have we finally resolved the issue.”

And the right-wing criticisms of the Times piece have gone out of their way to attack the Paper of Record and the judges who cooperated with its reporting—without bothering to take what those judges said seriously, or to consider the possibility that, whatever one thinks of judges participating in such a survey, they’re sending a warning that we (and the justices, especially) should all take seriously.

Let me start with Justice Barrett. At the risk of being direct, at this point, such superficial defenses of the Court’s affirmative refusal to provide public rationales in these cases are either lazy or uninformed (or both). No one is asking the Court to write the lengthy opinions that we expect after months of deliberation on plenary review (never mind that the Court was able to produce a 25-page majority opinion in the TikTok case this January just seven days after the oral argument). The question is why the justices can’t be bothered to even briefly (1) identify the proper standard for granting the relief the Trump administration is seeking; and (2) explain why proper application of that standard to the case at hand warrants granting the requested relief, even on an interim basis. To date, there have been a grand total of three majority opinions respecting the Trump administration’s applications for emergency relief—with 10 rulings that had no explanation whatsoever (the rest have involved cursory explanations that the Court itself has styled as “orders,” rather than as “opinions of the Court”).

Moreover, as I’ve explained at length before, the Court would have no trouble writing such an opinion in a way that doesn’t lock in any future result if and when the case returns on the merits; all it would have to do is rest its analysis on a proper balancing of the equities and a clear statement that it wasn’t conclusively resolving the merits—something it’s had no trouble insisting upon in non-Trump-related cases. As for Justice Barrett’s concern that even a short opinion might “give the impression that we have finally resolved the issue,” it’s the justices who, for the first time, are publicly insisting that even their unexplained rulings on emergency applications are entitled to precedential effect—something that wouldn’t make sense unless the justices have reached some kind of merits-based conclusion. To pretend that isn’t happening borders on gaslighting.

In any event, and to be as clear as possible, the criticism of the Court’s behavior on Trump-related applications is not only that the justices aren’t writing; it’s that the justices are handing down rulings (1) producing massive (and irreparable) real-world effects to a greater extent than ever before; (2) in contexts in which they appear to be acting completely inconsistently compared to both non-Trump-related cases today and comparable applications from the Biden administration; and (3) all while insisting that their thinly (or wholly un-)explained orders are precedents that bind other courts in other cases—which directly contradicts what Justice Alito publicly represented as recently as September 2021. Not writing would be more defensible in a world in which the Court was (1) having less of an impact; and (2) insisting that its unexplained orders affect only the parties to the instant case. But no one can look at the full body of the Court’s work over the past seven months and argue with a straight face that this is what’s actually happening.

As for the pearl-clutching about the Times story, it continues a remarkable tendency among the Court’s right-wing public defenders of not taking the criticisms at all seriously, whether by mischaracterizing what they are or by attacking the critics themselves (one case in point: when I first started regularly posting about the Court’s behavior on emergency applications during the first Trump administration, one prominent conservative lawyer responded to a number of my posts with a “Who Cares?” GIF).

Ultimately, it seems to me that there are two separate problems here, and it’s worth describing them separately. The first is that these right-wing responses aren’t actually responding to the critiques—and so we’re left with a vacuum of anyone trying to seriously defend the Court’s behavior after having properly described it.

After all, maybe one can defend the Court granting emergency relief more often than ever before and in cases with far greater real-world (and structural) impacts. And maybe one can defend the Court altering (if not completely scrapping) the traditional balance of the equities in these cases. But does that defense extend to the Court doing so especially in cases in which President Trump is a party—and no others? And does it extend to the Court doing all of this without usually providing written explanations of what it is doing—or why? And even if the answer is somehow “yes,” does it also extend to the Court doing all of this, not usually explaining what it’s doing or why, and nevertheless accusing lower courts who fail to read the justices’ minds of “defying” the Court?

I have a very hard time believing that anyone can genuinely make it through even three of those sentences with a coherent defense of what the Supreme Court has done over the past seven months—let alone all five of them. I’d love to see such an argument, if it exists, but I haven’t been—and won’t be—holding my breath.

The second problem is that, as I’ve written about at some length previously, the Court’s real power depends to a large degree on broad, diffuse public support—from across the political (if not ideological) spectrum. The more that the Court and its defenders are not at all invested in responding to their critics on the critics’ terms, and the more that they are disinterested in shoring up the eroding support for the Court from those who don’t necessarily agree with its bottom lines, the more they are sacrificing the Court’s long-term health for the sake of their short-term ideological agenda. I would have thought that, especially at a time in which there’s a 6-3 majority of Republican-appointed justices, both those justices and their defenders would be more interested in preserving the institution’s long-term credibility. These responses continue to suggest that, for whatever reason, they either don’t think the Court’s credibility is under serious threat so long as its support erodes mostly from one side of the aisle, or, even worse, they don’t care.

Suffice it to say, I think the lower-court judges quoted in the Times story are far closer to the mark—as to both the problems caused by the Court’s recent behavior and the stakes. We dismiss their concerns, and the Times’s reporting, at our (and the Court’s) peril.

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SCOTUS Trivia: Who was the “First” Justice?

Next Sunday, October 19, marks the 236th anniversary of the swearing in of John Jay as the Supreme Court’s first Chief Justice—notably, 2.5 months before the full Court would meet for the first time. (Jay was sworn in by Richard Morris, the Chief Justice of the State of New York.) Jay was the first of President George Washington’s original six nominees to be confirmed, and was the first whose commission was signed by the President (on September 26, 1789).

But by the time Jay was sworn in 23 days later, one of his colleagues had beaten him to the punch. Even though his commission was the third signed by President Washington, James Wilson holds the distinction of being the first person to ever be sworn in as a justice of the U.S. Supreme Court: He took his oaths on October 5, 1789—two full weeks before Jay. (Justices William Cushing and John Blair would be sworn in on the Court’s first full official day of business—Tuesday, February 2, 1790. And Justices John Rutledge and James Iredell would be sworn in later.) Wilson was thus the senior associate justice for his entire tenure on the Court—the only person to ever hold that … unique … honor.

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