There is good news and bad news about the U.S. Supreme Court.
Even though the Court’s term has ended, it has stayed in the news because the justices are responding to emergency petitions. On July 14, for instance, the Court responded to a request from the federal government in a case challenging a planned reduction of employees at the U.S. Department of Education. A majority of the justices allowed the government to move ahead with its plans while the lawsuit continues, but the U.S. Court of Appeals and potentially the Supreme Court will have opportunities to weigh in on the substance of the suit. As appropriate in that process, the Department of Education may have to pause again or, if the lawsuit is successful, abandon the reduction plan. Three justices dissented from this procedural decision.
These types of rulings are made from time to time. On July 8, in an 8-1 decision, the Court issued a virtually identical order in a case challenging a similar executive order calling for plans to reorganize a number of federal agencies.
The Court will always have these types of emergency decisions to make, ranging from applications like these to last-minute pleas for a stay of execution. In fact, each Supreme Court justice is assigned to at least one regional circuit to determine emergency requests arising from lower courts in that area. Sometimes, these are decided by the individual judge, and sometimes, as in the cases noted above, by the full court.
These types of emergency decisions are sometimes referred to as the Court’s “shadow docket,” a term coined by the great legal scholar, William Baude. It was not intended to have a pejorative meaning, but Court critics have promoted a sinister view. In this view, the Court is making important decisions without the normal deliberation it gives to regular cases. This obscures the reality that the Court always has had to deal with pressing requests.
Critics make much of the fact that many of these decisions are made without written opinions. This can be frustrating, but it is not necessarily inappropriate since the rush to produce an opinion under emergency circumstances could lead to poorly reasoned decisions that then may be treated as precedent in future cases.
The real question, of course, is whether the Court’s decisions on these requests and the decisions in the cases it takes are consistent with the Constitution and the law. This is where there is good news.
The Court issued important decisions on an extremely wide range of legal issues, very few of which receive press attention. Interestingly, few of these decisions can be characterized as “ideologically split” (with the three justices appointed by Democratic presidents in dissent), only 9%, according to an analysis published by SCOTUS Blog.
In these cases, the justices laid out careful opinions explaining their decisions and have made important clarifications on issues like religious freedom and the power of administrative agencies. These decisions align legal precedent with the original meaning of the Constitution.
There is, though, some bad news, also illustrated by the emergency decisions. The bad news is that the good news may be getting lost in partisan approaches to covering the Court’s work.
For instance, one story on the employee reduction decision was headlined “The Supreme Court just handed Trump his biggest victory of his second term.” This is, unfortunately, a common locution on all sides of the ideological spectrum, but it is an unfair and deeply distorted view of what the Court is doing. Of course, many of the Court’s decisions are technical and involved, and it’s less dramatic to say that the Court has paused the effect of a lower court decision so other courts can consider the issues than to say it has struck a blow for one political figure or another.
For contrast, consider the perspective of the recent winner of Professor Josh Blackman’s Fantasy SCOTUS competition. A Russian student studying in London, Kirill Muzyka, who scored a remarkable 4,840 out of 4,950 by predicting the outcome of Supreme Court cases. He said:
As someone from an authoritarian background, I’m deeply impressed by a system in which judges must publicly explain their decisions (putting aside the shadow docket), where legal reasoning matters, and where debate — even among ideological opponents — can shape outcomes. While my personal political leanings tend to align more with the liberal side of the Court, I’ve found that many conservative opinions are more thoughtful and well-argued than they are often given credit for. In my view, the American judicial system — though far from perfect — is an institution of extraordinary interest, and I look forward to continuing to follow it closely.
That is a very helpful perspective from a careful student of the Court’s work. Politicians, reporters, and pundits could learn from it. The Court’s role in our constitutional system is too important for public confidence to be needlessly undermined.
