The Supreme Court speaks in shadows

Over the last several months, the Supreme Court's use of its emergency docket has violated the most basic principles of fundamental judicial process. Most recently, on Monday, Sept. 8, the court overturned a Los Angeles federal district court's order that ICE agents only stop individuals if there is reasonable suspicion that they are in the country unlawfully. Although both the district court and the United States Court of Appeals for the 9th Circuit wrote long, careful opinions, the Supreme Court ruled the other way without a word of explanation.

Supreme Court long has had an emergency docket, something that has been dubbed in recent years, "the shadow docket." For example, those facing the death penalty often have gone to the court seeking a last-minute stay of execution. But there has been a huge recent increase in matters on the shadow docket.

In the last two months, the court has issued a number of important rulings on its emergency docket which concern the legality of actions by President Trump. Virtually all have been 6-3 rulings in favor of the Trump administration, with Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissenting.

When the court rules on its shadow docket it is without the benefit of full briefing, oral argument, and deliberation among the justices. If one believes that briefing, arguing, and deliberating matters -- and I certainly do -- we should be troubled by their absence when the court is issuing major rulings without them.

There are several recent disturbing developments in the court's use of the shadow docket.

Effectively overruling long-standing precedent without briefing and oral arguments. In 1935, in Humphrey's Executor v. United States, the court unanimously ruled that Congress, pursuant to its powers under Article I of the Constitution, could create independent agencies and insulate their members from presidential removal unless good cause for firing existed.

Since taking office on Jan. 20, 2025, President Trump has made clear that he does not believe that Humphrey's Executor should be regarded as good law and that he will not comply with it. Trump's argument is that it is a "unitary executive," and he should be able to fire anyone in the executive branch of government.

In Trump v. Wilcox, a matter on the Supreme Court's emergency docket, the six conservative justices indicated that they are likely to agree with President Trump about this and thus that they are inclined to overrule Humphrey's Executor. Gwynne Wilcox was appointed to the National Labor Relations Board by President Joe Biden and confirmed by the Senate. Her term expires in 2028, and federal law provides that she can be fired only for "cause." Cathy Harris is chair of the Merit Systems Protection Board and likewise under the federal statute can be fired only for cause.

President Trump fired both Wilcox and Harris without any assertion of cause for their being removed from office. The district court enjoined the firing and the D.C. Circuit in an en banc decision affirmed. But the Supreme Court in a 6-3 ruling stayed the preliminary injunction, allowing Wilcox and Harris to be fired while the matter was being litigated. The court said that it was doing so because President Trump was likely to ultimately prevail.

Justice Kagan wrote a strong dissent, joined by Justices Sotomayor and Jackson. She defended Humphrey's Executor, stating the decision "undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control." She said that under Humphrey's Executor, the firings were clearly illegal. She wrote that "the order allows the President to overrule Humphrey's by fiat, again pending our eventual review."

Insisting that shadow docket rulings are binding precedent. Until recently, I would have said that shadow docket rulings are without precedential effect. But it is clear that the conservative justices don't see it this way. Trump v. Boyle involved whether President Trump could fire members of the Consumer Product Safety Commission even though there was a statute providing that its members could be removed only for just cause.

The court, on July 23, said that the issue of the firing of the commissioners on the Consumer Product Safety Commission had been resolved in Trump v. Wilcox. The court said, "The application is squarely controlled by Trump v. Wilcox. Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases." The court thus treated a ruling on the shadow docket, not the 90-year-old precedent, as binding on lower courts.

Another example of this is National Institutes of Health v. American Public Health Association, where the court again treated a short order in an emergency docket matter as binding precedent.

On April 4, 2025, in Department of Education v. California, the court, in a 5-4 ruling, overturned a district court's temporary restraining order preventing the Department of Education from cutting off $65 million in teacher training grants. In a brief opinion, the court said that the government was "likely to succeed" in showing that the district court lacked jurisdiction because "the Tucker Act grants the court of Federal Claims jurisdiction over suits based on 'any express or implied contract with the United States.'" The court also expressed concern that if the federal government was ordered to spend the money and if this was later deemed incorrect, the federal government could not recoup the funds. Each of these points was made by the court in less than a paragraph.

On Thursday, Aug. 21, the Supreme Court, again 5-4, applied this to say that the district court and the United States Court of Appeals for the 1st Circuit erred in enjoining the termination of $783 million of grants by the National Institutes of Health. The court treated its earlier ruling as controlling. Justice Neil Gorsuch, in a concurring opinion, was explicit. He wrote: "If the district court's failure to abide by California were a one-off, perhaps it would not be worth writing to address it. ... [T]his is now the third time in a matter of weeks this court has had to intercede in a case 'squarely controlled' by one of its precedents. All these interventions should have been unnecessary, but together they underscore a basic tenet of our judicial system: Whatever their own views, judges are duty-bound to respect 'the hierarchy of the federal court system created by the Constitution and Congress.'"

Justice Gorsuch is thus saying that rulings on the shadow docket must be treated by lower courts as binding precedents. Justice Ketanji Brown Jackson, in dissent, objected and said: "A half paragraph of reasoning (issued without full briefing or any oral argument) thus suffices here to partially sustain the Government's abrupt cancellation of hundreds of millions of dollars allocated to support life-saving biomedical research."

Ruling without opinion. On many occasions, the court has reversed lower courts, without a word of explanation. On June 23, in Department of Homeland Security vs. D.V.D., the court lifted a district court order that prevented individuals from Venezuela and Cuba from being sent to South Sudan. The district court had issued a preliminary injunction against this, finding that the individuals were not given due process. They were not provided sufficient notice or a meaningful opportunity to challenge their deportation based on their fears for their safety. The judge was concerned the individuals could be subjected to torture or death upon arrival. Without explanation, the Supreme Court basis allowed the deportations to go forward, while the case winds its way through the justice system, which could take years.

On July 14, in McMahon v. New York, the court lifted a district court's preliminary injunction against mass firings at the Department of Education with the stated goal of eliminating that department.

And on Monday, Sept. 8, in Noem v. Perdomo, the Supreme Court stayed a federal district court injunction preventing ICE agents from stopping individuals without reasonable suspicion. There was not a word of explanation from the court, though Justice Kavanaugh wrote a concurring opinion just for himself and Justice Sotomayor wrote a dissent joined by Justices Kagan and Jackson.

"Because I said so" is neither persuasive or satisfying. And it certainly should not be regarded as acceptable when it is the Supreme Court resolving important issues -- even matters of life and death -- without the slightest explanation. Since the beginning of American history, the tradition is that the Supreme Court writes opinions to justify its rulings. The opinions convey that the justices are making reasoned decisions, not just exercising power. The explanations are important for the parties in the litigation, as well as to provide a rationale for the public. Opinions give guidance to lower courts, as well as to Congress and other legislatures.

Whether one agrees or disagrees with the merits of the court's rulings, it is inexcusable and unacceptable for the court to decide important matters in this way.