A Grand Bargain for Trump’s Supreme Court

The discontent of the Supreme Court’s liberals over the indulgence the majority is displaying toward the Trump administration’s reliance on emergency appeals is a newsworthy development. Such requests for lightning relief make up part of what the legal sage William Baude calls the “shadow docket,” meaning “a range of orders and summary decisions that defy the Court’s normal procedural regularity.” For Justice Ketanji Brown Jackson, the rise of the shadow docket is a tactic whereby the court’s conservative flank can more efficiently rubber stamp President Trump’s agenda. Our A.R. Hoffman reports how Judge Jackson, across dissents in two recent emergency petitions — on DOGE’s access to Social Security data and the president’s ability to reverse parole for some 300,000 migrants — has laid out an indictment of the court’s drive-by jurisprudence.Justice Jackson writes of a tribunal that dons “its emergency-responder gear, rushes to the scene, and uses its equitable power to fan the flames.” She shakes her head at stays issued on the basis of a “back-of-the-napkin assessment.” She paints a picture of a court that has “truly lost its moorings” by granting “extraordinary” requests in the “ordinary” course. The key showing a party must make to secure a stay is “irreparable harm.” The liberals appear to be moving in concert. Justice Elena Kagan, in a dissent last month joined by Justices Jackson and Sonia Sotomayor, lashed out at a court “unrestrained by the rules of briefing and argument … needed to discipline our decision-making.” In 2019, Justice Sotomayor reflected that “granting a stay pending appeal should be an ‘extraordinary’ act … it appears the Government has treated this … as a new normal.”The shadow docket has not been without its defenders. In 2021, Justice Samuel Alito delivered a lecture at Notre Dame titled “The Emergency Docket.” He reckoned that the “catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. … This portrayal feeds unprecedented efforts to intimidate the court.” The rise in emergency appeals to the Supreme Court early in Mr. Trump’s second term is hardly solely his fault, even if it arises in part from the 47th president’s hyperactive administration. Rather, it appears to us, it is more a function of the surge in nationwide injunctions handed down by lower court judges. Some tallies reckon that more of those were handed down in February than during the entirety of the Biden presidency.So feature the shadow docket. One case that the court plucked from the shadows was a petition from the administration to curtail nationwide injunctions. Although that case came up via an emergency appeal, it was aired in arguments. One of Solicitor General D. John Sauer’s points was that nationwide injunctions stymie precisely the percolation — briefing, oral arguments, fleshing out the fundamentals — for which the liberal justices avow they yearn. As Justice Jackson puts it, “in our legal system, success takes time and the stay standards require more than anticipated victory.” Perhaps the contours of a grand bargain could emerge as the high court’s term nears its end. The conservatives could limit nationwide injunctions — one scholar calls them a “bipartisan scourge” — and in so doing slow a shadow docket that threatens to overtake the court. Call it the shadow of an idea.

A Grand Bargain for Trump’s Supreme Court

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