Charges that Supreme Court critics are "schizophrenic" because they're making procedural *and* substantive critiques of the Court's behavior are missing the possibility that both claims are legitimate
thank you for your clear explanations and how pathetic that all the SC can do is belittle such valid criticisms of both their procedure and (lack of) substance. These decisions will be decried in text books for generations to come. Calling everyone else names won't change this!
For me the litigants deserve a written response explaining an emergency docket ruling. I believe all judges are taught the importance of writing out a decision because placing your thoughts on paper demands an accountability that evaporates without pen to paper.
Tomato, Tomato. I have felt you have bent over backwards in not calling out what is obvious at times. The Court calls balls and strikes before the pitch. Timing errors are errors with substantive import. Perhaps they can't read the room, so don't feel they have a need to explain.
Just tell your critics (as I once suggested to you we tell the Court itself), what every Fourth Grade teacher tells his or her students: “SYW - SHOW YOUR WORK.” The job is not done if you do not show your work. Especially when they expect others to not only divine their reasoning but, moreover, to follow it. Speaking of schizophrenic! What SCOTUS has done is sort of like saying: “We won’t tell you how we arrived at this conclusion because you would not believe it or accept it. You are stuck with our conclusion one way or the other, so why don’t we just give you that and skip the argument and reasoning.” A wonderful now old lawyer and boss once told me that writing your reasoning is the surest way to make certain it holds water. SCOTUS fails us when they don’t! They do us a disservice; and it is dishonorable like a middle finger to “we the people,” acting in the same way as their newly crowned and immune Executive Majesty.
Do the work, and show your work - critics and SCOTUS, both!
The style of argument you describe often appears in relationships (domestic, workplace, academic) where there is a power differential. People earnestly trying to do their best are subjected to name calling and unfounded accusations. This is a feature of abuse and it is a specialty of MAGA. We see it daily in the Oval Office; it is depressing to see it at the Court and in the press, in Congress and on our streets.
It seems it is getting worse at the Court. The conversative justices have ramped up their disgust for lower courts and their judges. And listening to Alito and Thomas rail against experts is very disconcerting.
The world has changed, SCOTUS has become an arm of the executive, stare decisis has been swept aside, and, in the unlikely event the court overturns a core decision of the president he will simply ignore and attack the justices… the new role of the court is to “legalize” actions of the president …
That's largely true, but I'm interested to see what Justices Gorsuch and Roberts say in the oral arguments on Tuesday, January 13, 2026. Their eventual decision may displease president Trump dislikes.
Those two cases (1) involve questions about transgender people in sports. I would be surprised if Gorsuch and Roberts sided with the transgender individuals (the respondents), given those Justices' political leanings, but they seem to have hemmed themselves in with their opinion in Bostock v. Clayton County (2), which said that discrimination because of an individual's sexual orientation is *necessarily* a form of discrimination because of the individual's sex. I personally find their reasoning riddled with flaws (3), but I doubt that they would want to acknowledge that even if they now agree.
(3) To be clear, I don't think employers should be allowed to discriminate on the basis of sexual orientation, but that wasn't the question before the Court.
I've never seen "Annie Hall," but I would point out that it can be perfectly legitimate to complain about both the quality and quantity of the food if you're really hungry and don't have other food sources. It amounts to, "This food is terrible, but I'm so hungry that I regret there's not at least enough of it to satisfy me." To call those complaints inconsistent is to assume the privilege of having plentiful other good options.
Similarly, when we entertain complaints about the quantity and quality of SCOTUS's decisions, it's best to remember they are the only SCOTUS we've got.
That would be an astute observation if the joke were about two people eating at a soup kitchen, but not when they're eating at a Catskills resort. The joke's about kvetches, not the underprivileged.
This piece by Steve Vladeck, carefully analyzing a joke, reminds me of a time when I was a teenager debating some political issue with my father. I was born with an analytical streak, and when I pointed out a logical flaw in his argument, he said "For God's sake, John, you sound like a damned lawyer!" He's long gone, but I still get a laugh from that.
Yes, but my point is that our situation with SCOTUS is more like people in a soup kitchen, because we only have one choice.... we don't have a different Supreme Court we can appeal to if they give us poor quality and/or not enough quantity of guidance.
I see. That makes sense in a way, though some people (not me) would say that even soup kitchen kvetches should be thankful for what they're given and stop complaining.
I never thought of the Supreme Court as a soup kitchen, though I wouldn't be surprised if some of the Justices said "Be thankful for what we give you."
I personally wouldn't say that even to people in a soup kitchen. But since we do "pay" for our Supreme Court compulsorily with taxes, maybe a more accurate comparison would be to people in an amusement park where outside food is not allowed, there's only one restaurant, and it serves tiny portions of abysmal food at outrageous prices. Yes, you have the choice of not going to the amusement park at all, but if you've already paid for it and that's all you get, I think a complaint would be quite reasonable.
So??? I don’t see your point at all. Our ONE supreme court should still act like a court, not like a Pontiff.
I once was dressed down by a US District Judge - behind the courtroom after an argument - without opposing counsel present by explicit judicial exclusion - because in my brief I had accused the other side of “pontificating” without authority. So I still sometimes use the accusation but only after deliberating w myself; here I think it is too frequently an accurate accusation of some SCoTUS writings. That judge now dead was out of bounds; my offense at pontificating judges and lawyers remains. Only the Pope can legitimately pontificate.
In certain cases, Congress can serve as a "superior" venue above SCOTUS, and the Court has from time to time even encouraged the losing party to seek higher relief from the Legislature. A sort of Panera to your soup kitchen, if you will, but alas you'll very likely need to pony up some coin to have any employee's ear, as access typically has its cost, unless the issue is hot enough for a vote-seeker to champion without caring much about the identity of the losing party at SCOTUS.
Methinks Steve doth protest too much. Woody Allen's wry story is funny, but not really instructive. The food could easily be lousy (failing to satisfy the taste buds) and insufficient (failing to assuage hunger) at the same time. 'Nuf said.
The point is so obvious it should not need today's post as a response--but, alas, here we are.
"Interim Docket" is a dumb name for that portion of the court's work. Even worse, it is not catchy in the least, and thus a lousy name for a blog. Finally, it takes sides on the debate among members of the court, thus plainly showing the authors' hand.
Failing to explain rulings that overturn the lower courts--when such explanation is entirely feasible, as the dissenters regularly show--is just flaunting the fact that the majority is accountable to no one. Attacking unnamed critics is always a weak rhetorical move, and doing so in lieu of making an affirmative defense for unexplained rulings is a disservice to our system of law.
What kind of lawyer, a law professor no less, uses a mental illness disorder as a pejorative, especially when the disorder doesn’t actually describe what the lawyer is characterizing.
On top of the inapt choice of Annie Hall vignette, Epps’s lack of critical thinking skills surely is cause to ask whether he should be teaching law students.
@Steve Vladeck: Well said. "Maybe, if those writing for the “Interim Docket Blog” think the Court’s behavior is worth defending, they’ll defend it on its own terms—and not Woody Allen’s." OUCH!
The attempt to invoke the “Annie Hall” defense is just another instance of “If you can’t defend your decisions, attack the person who identifies your error.”
Issuing decisions without reasons keeps in place precedent which might be needed in the future if the Court cannot stop or set aside the election of a Democratic President.
The Annie Hall analogy is nonsense for the reasons you state. But I'd like to submit that the Court is turning what SHOULD be a procedural issue INTO a substantive one. A lack of public reasoning means that there's no substantive guidance coming from a huge number of decisions. The Court is broken, and frankly the argument that the Court doesn't want to provide their rationale for fear of publishing an unpopular opinion is just excusing the failures of this Court to do its duty.
Regarding Chief Justice Roberts'assertion that he just calls balls and strikes, what he does in practice is to redefine or reconfigure the strike zone on key pitches so that he can call them as he wishes. I have been told by some people when I criticize a Supreme Court decison that (a) I am unqualified to do so, because I am not a lawyer, and (b) I only criticize decisons I disagree with on the grounds they are wrong, without rebutting the rationale and the arguments that back them up. I freely admit that one of my concerns about SJC decisons I disagree with is that they have predictable harmful consequences which the decision ignores, e.g., allowing racial profiling by ICE agents to continue (for now?), or the decision to interpret the 2nd Amendment as including an individual, almost unrestricted right to bear arms whose lethality is way beyond what the Founders could have been thinking or were aware of in the late 18th century etc. One retort of mine has been that since the majority of Justices are originalists they are also claiming to be historians able to discern what the writers of the Constitution knew then that is relevant to to today's much changed circumstances and environment, and therefore how their intentions at that time should be translated into a contemporary expression for the 2020s. They are no more knowledegable and expert at interpreting and finding lessons from history than I, let alone well respected historians who disagree with their interpretations. Moreover, I know a lot more than they do about modern technology and science that has advanced not inconsiderably over the past 250 years (although human nature is much the same) and its pervasive influence on and in our lives, for both good and evil. Did the Founders really think the President should be immune from punishment for anything he did as part of his offical duties - because George III was for example?
There are no originalists at the Court today. An originalist reads the Constitution in terms of the Declaration of Independence because the Framers did. They were authorized to override the Articles of Confederation but not the Declaration.
Real originalism:
Only consent of the governed legitimizes a government, so government has no sovereign, inherent, or extratextual rights, powers, privileges, or immunities, and all powers are ministerial unless otherwise expressed.
Real originalism:
British, colonial, or preconstitutional law has no bearing on US law.
Real originalism:
The basic unit of US government is the person (and the attributes of personhood bar artificial persons).
Never thought I'd see the day when not one member of SCOTUS shares Scalia's vision of originalism. I naively thought the newer Justices on the right would carry Scalia's banner proudly and earnestly. Alas, they seem to have rejected Scalia's vision as far too intellectually honest, and too consistent!! Never thought I'd see that day either.
thank you for your clear explanations and how pathetic that all the SC can do is belittle such valid criticisms of both their procedure and (lack of) substance. These decisions will be decried in text books for generations to come. Calling everyone else names won't change this!
The 90s were not 20 years ago and 1795 was 230 years ago, not 130 ;)
D'oh! Fixed.
(Thank you as always for sharing your writing with us)
😘
For me the litigants deserve a written response explaining an emergency docket ruling. I believe all judges are taught the importance of writing out a decision because placing your thoughts on paper demands an accountability that evaporates without pen to paper.
Yes, litigants deserve written explanations as do the rest of us -- judges, lawyers and 'we the people.'
Tomato, Tomato. I have felt you have bent over backwards in not calling out what is obvious at times. The Court calls balls and strikes before the pitch. Timing errors are errors with substantive import. Perhaps they can't read the room, so don't feel they have a need to explain.
Just tell your critics (as I once suggested to you we tell the Court itself), what every Fourth Grade teacher tells his or her students: “SYW - SHOW YOUR WORK.” The job is not done if you do not show your work. Especially when they expect others to not only divine their reasoning but, moreover, to follow it. Speaking of schizophrenic! What SCOTUS has done is sort of like saying: “We won’t tell you how we arrived at this conclusion because you would not believe it or accept it. You are stuck with our conclusion one way or the other, so why don’t we just give you that and skip the argument and reasoning.” A wonderful now old lawyer and boss once told me that writing your reasoning is the surest way to make certain it holds water. SCOTUS fails us when they don’t! They do us a disservice; and it is dishonorable like a middle finger to “we the people,” acting in the same way as their newly crowned and immune Executive Majesty.
Do the work, and show your work - critics and SCOTUS, both!
The style of argument you describe often appears in relationships (domestic, workplace, academic) where there is a power differential. People earnestly trying to do their best are subjected to name calling and unfounded accusations. This is a feature of abuse and it is a specialty of MAGA. We see it daily in the Oval Office; it is depressing to see it at the Court and in the press, in Congress and on our streets.
It seems it is getting worse at the Court. The conversative justices have ramped up their disgust for lower courts and their judges. And listening to Alito and Thomas rail against experts is very disconcerting.
The world has changed, SCOTUS has become an arm of the executive, stare decisis has been swept aside, and, in the unlikely event the court overturns a core decision of the president he will simply ignore and attack the justices… the new role of the court is to “legalize” actions of the president …
That's largely true, but I'm interested to see what Justices Gorsuch and Roberts say in the oral arguments on Tuesday, January 13, 2026. Their eventual decision may displease president Trump dislikes.
Those two cases (1) involve questions about transgender people in sports. I would be surprised if Gorsuch and Roberts sided with the transgender individuals (the respondents), given those Justices' political leanings, but they seem to have hemmed themselves in with their opinion in Bostock v. Clayton County (2), which said that discrimination because of an individual's sexual orientation is *necessarily* a form of discrimination because of the individual's sex. I personally find their reasoning riddled with flaws (3), but I doubt that they would want to acknowledge that even if they now agree.
[1] Little v. Hecox: https://www.supremecourt.gov/qp/24-00038qp.pdf
West Virginia v. B.P.J.: https://www.supremecourt.gov/qp/24-00043qp.pdf
[2] https://www.oyez.org/cases/2019/17-1618
(3) To be clear, I don't think employers should be allowed to discriminate on the basis of sexual orientation, but that wasn't the question before the Court.
I've never seen "Annie Hall," but I would point out that it can be perfectly legitimate to complain about both the quality and quantity of the food if you're really hungry and don't have other food sources. It amounts to, "This food is terrible, but I'm so hungry that I regret there's not at least enough of it to satisfy me." To call those complaints inconsistent is to assume the privilege of having plentiful other good options.
Similarly, when we entertain complaints about the quantity and quality of SCOTUS's decisions, it's best to remember they are the only SCOTUS we've got.
That would be an astute observation if the joke were about two people eating at a soup kitchen, but not when they're eating at a Catskills resort. The joke's about kvetches, not the underprivileged.
This piece by Steve Vladeck, carefully analyzing a joke, reminds me of a time when I was a teenager debating some political issue with my father. I was born with an analytical streak, and when I pointed out a logical flaw in his argument, he said "For God's sake, John, you sound like a damned lawyer!" He's long gone, but I still get a laugh from that.
Yes, but my point is that our situation with SCOTUS is more like people in a soup kitchen, because we only have one choice.... we don't have a different Supreme Court we can appeal to if they give us poor quality and/or not enough quantity of guidance.
I see. That makes sense in a way, though some people (not me) would say that even soup kitchen kvetches should be thankful for what they're given and stop complaining.
I never thought of the Supreme Court as a soup kitchen, though I wouldn't be surprised if some of the Justices said "Be thankful for what we give you."
I personally wouldn't say that even to people in a soup kitchen. But since we do "pay" for our Supreme Court compulsorily with taxes, maybe a more accurate comparison would be to people in an amusement park where outside food is not allowed, there's only one restaurant, and it serves tiny portions of abysmal food at outrageous prices. Yes, you have the choice of not going to the amusement park at all, but if you've already paid for it and that's all you get, I think a complaint would be quite reasonable.
I like that analogy!
Just in case you missed it, notice the "(not me)" in my previous comment.
So??? I don’t see your point at all. Our ONE supreme court should still act like a court, not like a Pontiff.
I once was dressed down by a US District Judge - behind the courtroom after an argument - without opposing counsel present by explicit judicial exclusion - because in my brief I had accused the other side of “pontificating” without authority. So I still sometimes use the accusation but only after deliberating w myself; here I think it is too frequently an accurate accusation of some SCoTUS writings. That judge now dead was out of bounds; my offense at pontificating judges and lawyers remains. Only the Pope can legitimately pontificate.
In certain cases, Congress can serve as a "superior" venue above SCOTUS, and the Court has from time to time even encouraged the losing party to seek higher relief from the Legislature. A sort of Panera to your soup kitchen, if you will, but alas you'll very likely need to pony up some coin to have any employee's ear, as access typically has its cost, unless the issue is hot enough for a vote-seeker to champion without caring much about the identity of the losing party at SCOTUS.
Methinks Steve doth protest too much. Woody Allen's wry story is funny, but not really instructive. The food could easily be lousy (failing to satisfy the taste buds) and insufficient (failing to assuage hunger) at the same time. 'Nuf said.
The point is so obvious it should not need today's post as a response--but, alas, here we are.
"Interim Docket" is a dumb name for that portion of the court's work. Even worse, it is not catchy in the least, and thus a lousy name for a blog. Finally, it takes sides on the debate among members of the court, thus plainly showing the authors' hand.
Failing to explain rulings that overturn the lower courts--when such explanation is entirely feasible, as the dissenters regularly show--is just flaunting the fact that the majority is accountable to no one. Attacking unnamed critics is always a weak rhetorical move, and doing so in lieu of making an affirmative defense for unexplained rulings is a disservice to our system of law.
What kind of lawyer, a law professor no less, uses a mental illness disorder as a pejorative, especially when the disorder doesn’t actually describe what the lawyer is characterizing.
On top of the inapt choice of Annie Hall vignette, Epps’s lack of critical thinking skills surely is cause to ask whether he should be teaching law students.
@Steve Vladeck: Well said. "Maybe, if those writing for the “Interim Docket Blog” think the Court’s behavior is worth defending, they’ll defend it on its own terms—and not Woody Allen’s." OUCH!
The attempt to invoke the “Annie Hall” defense is just another instance of “If you can’t defend your decisions, attack the person who identifies your error.”
Issuing decisions without reasons keeps in place precedent which might be needed in the future if the Court cannot stop or set aside the election of a Democratic President.
Sorry, Richard, I don't understand your point. Could you expand it?
The Annie Hall analogy is nonsense for the reasons you state. But I'd like to submit that the Court is turning what SHOULD be a procedural issue INTO a substantive one. A lack of public reasoning means that there's no substantive guidance coming from a huge number of decisions. The Court is broken, and frankly the argument that the Court doesn't want to provide their rationale for fear of publishing an unpopular opinion is just excusing the failures of this Court to do its duty.
Regarding Chief Justice Roberts'assertion that he just calls balls and strikes, what he does in practice is to redefine or reconfigure the strike zone on key pitches so that he can call them as he wishes. I have been told by some people when I criticize a Supreme Court decison that (a) I am unqualified to do so, because I am not a lawyer, and (b) I only criticize decisons I disagree with on the grounds they are wrong, without rebutting the rationale and the arguments that back them up. I freely admit that one of my concerns about SJC decisons I disagree with is that they have predictable harmful consequences which the decision ignores, e.g., allowing racial profiling by ICE agents to continue (for now?), or the decision to interpret the 2nd Amendment as including an individual, almost unrestricted right to bear arms whose lethality is way beyond what the Founders could have been thinking or were aware of in the late 18th century etc. One retort of mine has been that since the majority of Justices are originalists they are also claiming to be historians able to discern what the writers of the Constitution knew then that is relevant to to today's much changed circumstances and environment, and therefore how their intentions at that time should be translated into a contemporary expression for the 2020s. They are no more knowledegable and expert at interpreting and finding lessons from history than I, let alone well respected historians who disagree with their interpretations. Moreover, I know a lot more than they do about modern technology and science that has advanced not inconsiderably over the past 250 years (although human nature is much the same) and its pervasive influence on and in our lives, for both good and evil. Did the Founders really think the President should be immune from punishment for anything he did as part of his offical duties - because George III was for example?
There are no originalists at the Court today. An originalist reads the Constitution in terms of the Declaration of Independence because the Framers did. They were authorized to override the Articles of Confederation but not the Declaration.
Real originalism:
Only consent of the governed legitimizes a government, so government has no sovereign, inherent, or extratextual rights, powers, privileges, or immunities, and all powers are ministerial unless otherwise expressed.
Real originalism:
British, colonial, or preconstitutional law has no bearing on US law.
Real originalism:
The basic unit of US government is the person (and the attributes of personhood bar artificial persons).
Etc.
Never thought I'd see the day when not one member of SCOTUS shares Scalia's vision of originalism. I naively thought the newer Justices on the right would carry Scalia's banner proudly and earnestly. Alas, they seem to have rejected Scalia's vision as far too intellectually honest, and too consistent!! Never thought I'd see that day either.