The February 2016 rulings blocking the Clean Power Plan were unprecedented; in retrospect, they were harbingers of a paradigm shift in the Supreme Court's role.
If Congress can be backed into voting for release of the Epstein files, it can be pushed into setting limits on ICE.
When public opinion is STRONG, Trump knows he has to back down. It's time to call Congress (202 224 3121) and the White House (202 456 1414) about ICE reform. The next 10 days are critical. Read about the 10 Democratic proposals to curb ICE.
I thought Montgomery v. Louisiana was 6-to-3 rather than 5-to-4? Kennedy wrote the opinion, joined by Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. Scalia, Thomas, and Alito dissented.
Ironic that unexplained orders are intrinsically arbitrary and capricious, exactly the kind of problem that gets administrative rules and regulations tossed in the first place.
I guess Steve assumes we all know he wrote at length (and depth, and clarity) about today's topic in his book The Shadow Docket. Perhaps modesty forbade.
I believe Congress can limit or entirely do away with the Supreme Court's appellate power. I don't see Republicans joining with Democrats to form a veto-proof majority though.
Thank you for this reminder that the behavior and decisions of the Supreme Court that since January 20, 2025 we have found increasingly shocking and even constitutionally questionable if not illegal has origins in the minds, attitudes and biases of Justices themselves that are independent from those of the occupant of the White House. Although presumably it is formally impossible for a Supreme Court ruling to be illegal at the time it is made, since there is no Supremer Court to overturn its decisions, and it can be argued that the word Supreme is itself an absolute adjective, making comparison technically improper. Only a later decision by the Supreme Court can overturn a previous ruling. I recall that some legal commentators have characterized the Shadow Docket as the legal and contemporary equivalent of the curtain of secrecy in the Wizard of Oz. If only the famous quote in that movie, “"Pay no attention to that man behind the curtain!" could be applied to the Shadow Docket. Democracy dies in Darkness (Washington Post, 2017) but now it can also be brazenly attacked in sunlight (Washington Post, 2026).
The reminder of the February 2016 rulings blocking the EPA’s Clean Power Plan is another disturbing sign of the ignorance of some Justices not only as historians (their application of “originalism” and textual analysis) but also of contemporary science and the knowledge we have developed over the last quarter millennium, and hence of the predictably harmful consequences of some of their decisions. If they were intellectually honest, they would admit they have no business reaching decisions about critical matters about which they know very little if anything. How do they propose humanity address the harms it will increasingly be exposed to as a result of human-accelerated climate warming if we do not take steps to reduce one of its causes? Is there no legal principle that if lives are at stake you are entitled to take steps to save them even if they require actions that could or might otherwise be ruled as illegal? Is the fundamental principle of bioethics and medicine, " Above all, do no harm" totally irrelevant for the rule of law?
One suspects that explanations for these types of decisions are even less likely after Justice Kavanaugh's concurrence in Pedro Vasquez Perdomo v. Kristi Noem clumsily describing imaginary, brief and friendly "your papers please" immigration stops which was met with widespread mockery and the coining of the derisive term "Kavanaugh stops." He (unsuccessfully IMO) even tried to walk it back in an unrelated ruling.
The lesson is better to say nothing at all than to say something stupid, wrong and completely at odds with reality (with a healthy dose of racism in this particular case).
As someone deeply involved in developing the Clean Power Plan, I always felt that there was nothing I could say or write that would not be dismissed as self-serving. To read the analyis of a disinterested authority on SCOTUS articulating what many of us have been thinking over the last 10 years, ever since the Court stayed the CPP is certainly gratifying.
Even at the time the CPP stay was issued, I recall that along with the crushing disappointment that my EPA colleagues and I felt came a chilling suspicion that the Court had "broken the seal" with what could be -- and over time, as you document here, in your book, and in your earler Substack posts, has proven to be -- a template for destructive interventions that have subverted executive branch policy-making and the judiciary itself.
Thank you for this. As a Law nerd, I appreciate this. However, I fear that it could only be appreciated or understood by a law nerd. Or someone law nerd adjacent. I hope I’m wrong.
Thank for the newsletter. I couldn’t believe my eyes, how MAXWELL, pleaded the 5th , during the testimony, but that’s her right under the law and the Constitution. Please subscribe to One FIRST.
Not sure of the takeaway: Court is political; constitutional process is too slow for some politicala agendas; Art 3 becomes Art 1 in a fractured political system that cannot override the Court's decisions; all of the above? Art 1 changes occur, in part, every 2 and 6 yrs. Art 2 every 4 or 8. Court has life terms subject to "good behavior". Can Art 3 (in the Court), be our new Art 1?
‘I suspect that the federal government’s hard-to-defend hypocrisy was not lost on the justices’. I suspect you are absolutely correct Steve
If Congress can be backed into voting for release of the Epstein files, it can be pushed into setting limits on ICE.
When public opinion is STRONG, Trump knows he has to back down. It's time to call Congress (202 224 3121) and the White House (202 456 1414) about ICE reform. The next 10 days are critical. Read about the 10 Democratic proposals to curb ICE.
https://kathleenweber.substack.com/p/the-most-important-thing-you-can
I thought Montgomery v. Louisiana was 6-to-3 rather than 5-to-4? Kennedy wrote the opinion, joined by Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. Scalia, Thomas, and Alito dissented.
Sure enough! Thanks for the catch; fixing now.
Ironic that unexplained orders are intrinsically arbitrary and capricious, exactly the kind of problem that gets administrative rules and regulations tossed in the first place.
I guess Steve assumes we all know he wrote at length (and depth, and clarity) about today's topic in his book The Shadow Docket. Perhaps modesty forbade.
Highly recommended!
I do wonder if there might be some legislative action that could be taken to address this [mis]use of the shadow docket.
I believe Congress can limit or entirely do away with the Supreme Court's appellate power. I don't see Republicans joining with Democrats to form a veto-proof majority though.
Thank you for this reminder that the behavior and decisions of the Supreme Court that since January 20, 2025 we have found increasingly shocking and even constitutionally questionable if not illegal has origins in the minds, attitudes and biases of Justices themselves that are independent from those of the occupant of the White House. Although presumably it is formally impossible for a Supreme Court ruling to be illegal at the time it is made, since there is no Supremer Court to overturn its decisions, and it can be argued that the word Supreme is itself an absolute adjective, making comparison technically improper. Only a later decision by the Supreme Court can overturn a previous ruling. I recall that some legal commentators have characterized the Shadow Docket as the legal and contemporary equivalent of the curtain of secrecy in the Wizard of Oz. If only the famous quote in that movie, “"Pay no attention to that man behind the curtain!" could be applied to the Shadow Docket. Democracy dies in Darkness (Washington Post, 2017) but now it can also be brazenly attacked in sunlight (Washington Post, 2026).
The reminder of the February 2016 rulings blocking the EPA’s Clean Power Plan is another disturbing sign of the ignorance of some Justices not only as historians (their application of “originalism” and textual analysis) but also of contemporary science and the knowledge we have developed over the last quarter millennium, and hence of the predictably harmful consequences of some of their decisions. If they were intellectually honest, they would admit they have no business reaching decisions about critical matters about which they know very little if anything. How do they propose humanity address the harms it will increasingly be exposed to as a result of human-accelerated climate warming if we do not take steps to reduce one of its causes? Is there no legal principle that if lives are at stake you are entitled to take steps to save them even if they require actions that could or might otherwise be ruled as illegal? Is the fundamental principle of bioethics and medicine, " Above all, do no harm" totally irrelevant for the rule of law?
One suspects that explanations for these types of decisions are even less likely after Justice Kavanaugh's concurrence in Pedro Vasquez Perdomo v. Kristi Noem clumsily describing imaginary, brief and friendly "your papers please" immigration stops which was met with widespread mockery and the coining of the derisive term "Kavanaugh stops." He (unsuccessfully IMO) even tried to walk it back in an unrelated ruling.
The lesson is better to say nothing at all than to say something stupid, wrong and completely at odds with reality (with a healthy dose of racism in this particular case).
As someone deeply involved in developing the Clean Power Plan, I always felt that there was nothing I could say or write that would not be dismissed as self-serving. To read the analyis of a disinterested authority on SCOTUS articulating what many of us have been thinking over the last 10 years, ever since the Court stayed the CPP is certainly gratifying.
Even at the time the CPP stay was issued, I recall that along with the crushing disappointment that my EPA colleagues and I felt came a chilling suspicion that the Court had "broken the seal" with what could be -- and over time, as you document here, in your book, and in your earler Substack posts, has proven to be -- a template for destructive interventions that have subverted executive branch policy-making and the judiciary itself.
Thank you! I so appreciate your hard work and dedication to good policy. We all have to do our best against this corporatist SCOTUS.
Thank you for this. As a Law nerd, I appreciate this. However, I fear that it could only be appreciated or understood by a law nerd. Or someone law nerd adjacent. I hope I’m wrong.
I've always thought that we don't use the verb "gainsay" enough! So thanks for that!
Hi, Steve!
The Shadow
Thank for the newsletter. I couldn’t believe my eyes, how MAXWELL, pleaded the 5th , during the testimony, but that’s her right under the law and the Constitution. Please subscribe to One FIRST.
Not sure of the takeaway: Court is political; constitutional process is too slow for some politicala agendas; Art 3 becomes Art 1 in a fractured political system that cannot override the Court's decisions; all of the above? Art 1 changes occur, in part, every 2 and 6 yrs. Art 2 every 4 or 8. Court has life terms subject to "good behavior". Can Art 3 (in the Court), be our new Art 1?