Until recently, the government rarely asked the justices to decide cases on the emergency/interim/shadow docket. Presidents George W. Bush and Barack Obama sought such action only 8 times in 16 years. But in the last decade, the Court’s definition of “emergency” has grown to include almost any lower-court ruling the justices feel like weighing in on. While these shadow docket orders are not final in a legal sense, they often are in a practical one — say, when the Court allows the president to deport an undocumented immigrant or fire thousands of civil servants.
Combine this with a president who believes everything is an emergency — during Trump’s first term his administration sought shadow docket relief 41 times — and you have a recipe for the sort of arbitrary, unexplained exercise of power that led Americans to declare their independence from the Crown in the first place.
Currently the Court is considering emergency appeals from Trump regarding whether he can build a new White House ballroom without going through Congress, and whether he can make it harder for Americans to cast their vote by mail (the way Trump himself votes).
Requiring officials to give reasons for their actions is the foundation of liberal society, the sine qua non of modern representative government. It’s what separates a constitutional democracy from an authoritarian regime. Indeed, it’s right there in the Constitution: The Great Writ — habeas corpus — is based on the principle that if the state wants to detain you or deprive you of your liberty, it must first bring you into open court and provide the precise reasons why.
In an incident from another case last fall, a veteran federal district judge, William G. Young, blocked the Trump administration from canceling millions of dollars in grants by the National Institutes of Health. Apparently, Young had failed to intuit the meaning of an earlier shadow docket ruling by the Supreme Court, which involved the canceling of grants by a separate agency while offering almost no actual reasoning. For this crime, the judge endured a harsh public scolding by Justices Neil Gorsuch and Brett Kavanaugh.
“Lower-court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them,” Gorsuch wrote.
Young, a Reagan appointee and judge for 47 years, apologized in open court. “Never before this admonition has any judge in any higher court ever thought to suggest that this court had defied the precedent of a higher court — that was never my intention,” he said. “I simply did not understand that orders on the emergency docket were precedent,” he added. “I stand corrected.” (Never mind that the justices seem unable to agree even with themselves on this point: In his smackdown of Young, Gorsuch wrote that a Supreme Court decision is a “precedent that commands respect in lower courts,” but only five years ago Justice Samuel Alito had said emergency docket rulings are not precedential.)