The shadow docket used to be the sleepy part of the Court’s work. The ramifications for the individual litigants were still tremendous, of course, but the Court’s unexplained rulings on half-argued cases remained confined to the caption itself. These days, it’s the Supreme Court’s main stage, an opportunity to rewrite long-standing precedent through a process barely a notch removed from advisory opinions.
While once limited to glorified preliminary injunctions, the Supreme Court’s conservative majority has recast the shadow docket as an avenue to upset the status quo and award the administration victories that plaintiffs have no hope of seeing repaired. Unlike keeping some middle manager sidelined, the result of shadow docket decisions over independent agency leadership, the Court’s order renders the legal landscape impossible to later untangle.
And, on top of this, the Court began demanding that lower courts take the “vibe precedent” of its shadow docket opinions as superseding existing precedent. Justice Gorsuch went so far as to claim that lower courts “defy” the Supreme Court when they don’t apply the hinted at justifications in these unexplained emergency orders as controlling over existing caselaw. Justice Jackson referred to this as Calvinball jurisprudence with a twist. More recently Justice Kagan explained that “our emergency docket should never be used, as it has been this year, to permit what our own precedent bars.”
Professor Steve Vladeck captured this bizarro new order perfectly:
“In a nutshell, the trilogy appears to stand for the (new) proposition that courts not only may, but must, consider the possibility that a party is likely to prevail even if the governing precedent is squarely to the contrary—if it’s a case in which the Supreme Court is likely to overrule that precedent. In other words, courts are now under an obligation to issue equitable relief even in contexts in which they’re not allowed to rule for the party on the merits—where, at the Supreme Court’s own insistence, they’re unquestionably bound to follow the relevant precedent until it is overruled.”
But why are the Republican justices so gassed up about using the shadow docket to backdoor overrule long-standing precedent? They have the votes to do it “the right way,” of course. Why undermine the Court’s long-term legitimacy?
Speedrunning is definitely a factor. By issuing emergency orders, the Court can jump the line and give the administration the result it wants without having to wait for the slow wheels of the judiciary to run their course. And a lack of integrity plays into it as well, as the GOP justices have expressed their understanding that precedent and the usual trappings of the rule of law are subservient to their new superlegislature status.
But the news that the Supreme Court is fast-tracking an opportunity to formally overrule Humphrey’s Executor, the near century old precedent governing agency independence that the Court has undermined over and over this year without expressly addressing, suggests an even more cynical reason for its embrace of the shadow docket.
They never really wanted to overrule the case.
This may sound ridiculous considering the open hostility the Court has shown that precedent, but the evidence is there. Earlier this year, while authorizing the administration to keep NLRB members off the job after Trump illegally fired them (at least according to existing caselaw), the Court went out of its way to invent a new standard suggesting that the executive can fire independent agency leaders… except for the Federal Reserve. With this gratuitous caveat, the Court hoped to have it both ways, allowing the administration to fire the leaders of agencies that protect consumers or labor while keeping guardrails up around the agency that prevents the justices’ own stock portfolios from suffering.
It’s a carveout that, as Justice Kagan noted at the time, wouldn’t stand up to scrutiny. But, coupled with their newfound stance that lower courts had to apply their best guess at the justifications of shadow docket rulings, the majority seems to have hoped that this would force lower courts to rubberstamp Trump’s firings — save any Federal Reserve dismissals — and keep the Supreme Court out of it.
This strategy crashed into reality when the Trump administration went ahead with the first baby steps in his Federal Reserve purge. Now that it’s clear that the administration isn’t going to leave the Fed out of it, it’s forced the Supreme Court’s hand on all of these firings, and the justices had to grant certiorari to resolve the continuing validity of Humphrey’s Executor.
They hoped to temporarily underrule the case. Strong arm lower courts into agreeing that the Trump administration could fire the Democrats off bipartisan independent agencies based on the Court’s facially temporary orders, while preserving Humphrey’s Executor so they could block a future Democratic president from removing Trump’s cronies from these agencies in a few years.
Allow “likely to succeed on the merits” to guide lower courts for now, while allowing a future conservative majority to respond “well, we never technically overruled that precedent!” down the road.
And, to borrow from Scooby-Doo, they would’ve gotten away with it if it weren’t for those pesky, incompetent administration officials. Rather than leave well enough alone and let the Fed continue to buttress the economy against the 1970s-style stagflation brought on by Trump’s economic policy, they had to force the Supreme Court’s hand. That half-assed Fed carveout didn’t deter the administration and now they’ll have to address the case head on.
Whatever they decide, they’re going to put it on the books and be forced to deal with it when Democrats take advantage of the new precedent.
Make no mistake, this majority is more than comfortable with naked hypocrisy, but they resent having to make it so obvious.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
The post Supreme Court’s Shadow Docket Scam Collides With Reality appeared first on Above the Law.
The shadow docket used to be the sleepy part of the Court’s work. The ramifications for the individual litigants were still tremendous, of course, but the Court’s unexplained rulings on half-argued cases remained confined to the caption itself. These days, it’s the Supreme Court’s main stage, an opportunity to rewrite long-standing precedent through a process barely a notch removed from advisory opinions.
While once limited to glorified preliminary injunctions, the Supreme Court’s conservative majority has recast the shadow docket as an avenue to upset the status quo and award the administration victories that plaintiffs have no hope of seeing repaired. Unlike keeping some middle manager sidelined, the result of shadow docket decisions over independent agency leadership, the Court’s order renders the legal landscape impossible to later untangle.
And, on top of this, the Court began demanding that lower courts take the “vibe precedent” of its shadow docket opinions as superseding existing precedent. Justice Gorsuch went so far as to claim that lower courts “defy” the Supreme Court when they don’t apply the hinted at justifications in these unexplained emergency orders as controlling over existing caselaw. Justice Jackson referred to this as Calvinball jurisprudence with a twist. More recently Justice Kagan explained that “our emergency docket should never be used, as it has been this year, to permit what our own precedent bars.”
Professor Steve Vladeck captured this bizarro new order perfectly:
“In a nutshell, the trilogy appears to stand for the (new) proposition that courts not only may, but must, consider the possibility that a party is likely to prevail even if the governing precedent is squarely to the contrary—if it’s a case in which the Supreme Court is likely to overrule that precedent. In other words, courts are now under an obligation to issue equitable relief even in contexts in which they’re not allowed to rule for the party on the merits—where, at the Supreme Court’s own insistence, they’re unquestionably bound to follow the relevant precedent until it is overruled.”
But why are the Republican justices so gassed up about using the shadow docket to backdoor overrule long-standing precedent? They have the votes to do it “the right way,” of course. Why undermine the Court’s long-term legitimacy?
Speedrunning is definitely a factor. By issuing emergency orders, the Court can jump the line and give the administration the result it wants without having to wait for the slow wheels of the judiciary to run their course. And a lack of integrity plays into it as well, as the GOP justices have expressed their understanding that precedent and the usual trappings of the rule of law are subservient to their new superlegislature status.
But the news that the Supreme Court is fast-tracking an opportunity to formally overrule Humphrey’s Executor, the near century old precedent governing agency independence that the Court has undermined over and over this year without expressly addressing, suggests an even more cynical reason for its embrace of the shadow docket.
They never really wanted to overrule the case.
This may sound ridiculous considering the open hostility the Court has shown that precedent, but the evidence is there. Earlier this year, while authorizing the administration to keep NLRB members off the job after Trump illegally fired them (at least according to existing caselaw), the Court went out of its way to invent a new standard suggesting that the executive can fire independent agency leaders… except for the Federal Reserve. With this gratuitous caveat, the Court hoped to have it both ways, allowing the administration to fire the leaders of agencies that protect consumers or labor while keeping guardrails up around the agency that prevents the justices’ own stock portfolios from suffering.
It’s a carveout that, as Justice Kagan noted at the time, wouldn’t stand up to scrutiny. But, coupled with their newfound stance that lower courts had to apply their best guess at the justifications of shadow docket rulings, the majority seems to have hoped that this would force lower courts to rubberstamp Trump’s firings — save any Federal Reserve dismissals — and keep the Supreme Court out of it.
This strategy crashed into reality when the Trump administration went ahead with the first baby steps in his Federal Reserve purge. Now that it’s clear that the administration isn’t going to leave the Fed out of it, it’s forced the Supreme Court’s hand on all of these firings, and the justices had to grant certiorari to resolve the continuing validity of Humphrey’s Executor.
They hoped to temporarily underrule the case. Strong arm lower courts into agreeing that the Trump administration could fire the Democrats off bipartisan independent agencies based on the Court’s facially temporary orders, while preserving Humphrey’s Executor so they could block a future Democratic president from removing Trump’s cronies from these agencies in a few years.
Allow “likely to succeed on the merits” to guide lower courts for now, while allowing a future conservative majority to respond “well, we never technically overruled that precedent!” down the road.
And, to borrow from Scooby-Doo, they would’ve gotten away with it if it weren’t for those pesky, incompetent administration officials. Rather than leave well enough alone and let the Fed continue to buttress the economy against the 1970s-style stagflation brought on by Trump’s economic policy, they had to force the Supreme Court’s hand. That half-assed Fed carveout didn’t deter the administration and now they’ll have to address the case head on.
Whatever they decide, they’re going to put it on the books and be forced to deal with it when Democrats take advantage of the new precedent.
Make no mistake, this majority is more than comfortable with naked hypocrisy, but they resent having to make it so obvious.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
