The Supreme Court's Trump Enablers May Have Screwed Themselves

[erronis]

https://newrepublic.com/article/200614/roberts-court-shadow-docket-blowback
Simon Lazarus

The court’s conservatives spent last term bailing out the administration with shadow docket shams. Now they must reckon with all the cans they kicked down the road.

The Supreme Court’s conservatives spent most of last term accepting, then granting, an unprecedented slew of heretofore-rare Justice Department “emergency applications” from the court’s so-called “shadow docket,” most in the service of staying lower court bars against myriad Trump administration actions bloating presidential powers. Thereby, the justices enabled Trump to continue breaching preexisting boundaries without having to decide on the merits whether his power grabs actually violate relevant law. In most cases, the justices issued these often highly consequential edicts with no explanation to help parties, lower courts, other governmental branches, or the public get an inkling of what their final decision might be, or what analytical approach they will deploy.

But in recent weeks, Trump’s gluttony for norm-breaking has reached heights that preclude the justices from continuing to kick these cans down the road. In the term that begins next month, they will have to stop dithering and decide issues that could make or break his presidency. On September 9, the court agreed to review two lower court rulings that held that Trump’s huge new tariffs lack any statutory authorization and would, one appellate court held, usurp “the power of the purse (including the power to tax) [which under the Constitution] belongs to Congress.” This past Monday, September 15, an appellate panel upheld Federal Reserve Governor Lisa Cook’s challenge to Trump’s attempt to fire her without statutorily prescribed “cause.” A day later, the White House announced its intent to appeal that defeat to the Supreme Court.

A number of prominent liberal court-watchers, such as law professors Lawrence Tribe and Leah Litman, pundit and author Ian Milhiser, and, at times, Supreme Court Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown-Jackson, have ascribed the conservative majority’s receptivity to Trump shadow docket requests to rank partisanship. Much evidence lends credibility to that charge. As of this writing, the Trump Justice Department has filed 20 emergency applications with the court in its brief tenure, compared with a 16-year total of eight such applications from the George W. Bush and Barack Obama administrations, or one every other year.

This year, the court granted 18 of Trump’s requests to stay adverse lower court orders, usually over fierce dissents from liberal justices. Georgetown law professor Stephen Vladeck spotlighted the “rather obvious contrast—where serious standing objections were not enough to justify emergency relief when it was the Biden administration looking to put its student loan debt relief back into effect, but where ... weaker standing objections were enough to justify allowing [President Trump] to effectively strangle a critical federal agency.” (Emphasis in the original.) Trump had fired 50 percent of the Department of Education’s workforce overnight. By letting this decapitation stand for as long as Trump manages to slow-roll litigation challenges, the conservative justices may well have enabled him to render his starkly unlawful objective—unilaterally terminating a congressionally enacted department and multiple duly enacted programs—a fait accompli.

. . .