The Most Insidious Way That the Supreme Court Has Exploited Trump's Chaos

As the first Supreme Court term of Donald Trump's second presidency draws to a close, the justices have been inundated with Trump-centered disputes on the shadow docket. In a series of emergency orders, the court has sought to simultaneously expand executive authority while reining in the White House's most lawless abuses. Time and again, the justices have dodged head-on conflicts with the administration by crafting dubious compromises that drain the court of its own power. The majority seems to think it can exploit the never-ending stream of emergencies to further its own conservative vision of the law without surrendering its independence.

On this week's episode of Amicus , Dahlia Lithwick and Mark Joseph Stern discussed the court's efforts to enforce aspects of the law the justices prefer while abandoning those they dislike in response to the Trump administration's claims of an “emergency.” An excerpt of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: We have already seen hugely consequential shadow-docket rulings just in the last few weeks. In some of them, we don't know which justice is on what side. Often, we don't know what the law is. We just know that the court zigged or zagged. There is no way to construct a meaningful system of law based on these kinds of unsigned Post-it notes.

Professor Aziz Huq has made this really interesting comparison to 1930s Germany, when you had what he called a “dual state” system: One system of law operating sort of visibly, clearly, coherently. Everybody agrees this is law . And then this second system that kind of operates in the shadows—this shadow world of law, but not law, that is essentially just power and emergencies. And it is no accident that every single one of these things is now an emergency.

Mark Joseph Stern: Every ruling in the lower courts against Trump is an emergency that requires sudden and immediate redress by the Supreme Court, at least in the view of the Justice Department—and in the view of four justices, sometimes five, occasionally six. What's really troubling here is not just that the court is constantly falling over itself to intervene in these Trump-related disputes. Not always on Trump's side, but far too frequently for comfort.

The big issue, though, is that when the Supreme Court hands down a decision over the shadow docket, it doesn't have to just reach the merits and say: “This is what's right” and “This is what's wrong.” It gets to consider all of these squishy factors like the balance of the equities and irreparable harm. And it is super easy for the court to manipulate those squishy factors to justify a decision for Trump that does not follow what the law actually is—that has the impact of unsettling the law—but that, in the view of the court, seems just and fair with due deference to the presidency.

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The decision declaring that two leaders of independent agencies must remain fired for months while the case winds its way through the court is a perfect example of that. The court didn't expressly say: Trump now has a right to fire the heads of independent agencies . It said: Well, when we balance the equities and we consider the irreparable harms, Trump would be harmed more by these leaders staying in their jobs than the leaders will be harmed by getting fired from their jobs .

As Justice Elena Kagan pointed out in her very spicy dissent, that is a total botched misreading of how you actually balance harms and equities. The harm here isn't that these two individuals are going to lose their jobs. They're going to find another way to get a paycheck; nobody in this case cares about that. The harm is that Trump has now gotten away with violating a federal statute, duly enacted by Congress—two different federal statutes, in fact, that have been on the books for years, that reflect the judgment of our legislators elected by the people that some agencies should have a buffer that protects them from direct partisan interference. Now that buffer is totally gone. And this Supreme Court didn't even talk about it! They just ignored it. They just wanted it away because, well, it's the shadow docket. It's fake law. They can do whatever they want and just pass it off as balancing harms.

In the same opinion, the court more or less threw a 90-year-old precedent into the dustbin of history and never explained why. Then it rescued the Federal Reserve from the dustbin of history and poorly explained why, though its explanation doesn't really hold. So I just want to make one quick point about emergencies: It's all feelings-ball, right? It's all feelings, hunches, and superstitions about which side's claims to an emergency are more legitimate.

Yes, and it seems to me that this is something the Supreme Court assures us it doesn't do anymore. When it invokes originalism or textualism, the court promises us that it's moving away from living constitutionalism and balancing tests. It's just giving us a rigid answer: yes or no. The conservative justices are constantly insisting that they don't balance interests anymore; they only determine the original meaning of the Constitution and apply it to the case at hand. Well, on the shadow docket, the court jettisons all of that and does something completely different. And whatever it is, it just doesn't look a lot like law.

I wanted to ask you about one aspect of all this that you've been focusing on. As the court manages its caseload, it's also managing its public image. And we have seen tanking public confidence in the court, understandably so. The court likes to tell the story about itself that it's oracular and humble and nonpartisan. That has been a challenging story to tell over the last few years, especially post- Dobbs . But I feel like now they are maybe trying to tell it less. The justices are taking pretty sharp swipes at each other, and some are calling these lower court judges hacks—just outright condemning them for standing in the way of Trump. I'm curious what effect you think this will have on the court's own legitimacy as it battles for a place at the table while Trump gobbles up everything the court thought it had authority over, Pacman-like.

Look, it's early days. At first, we could say the Supreme Court was trying to preserve that sense of itself as careful and evenhanded by doing really technical, often jurisdictional things. They pulled that off for the first few weeks. But you can do jurisdictional stuff only for so long. And then I think the court had to start doing things that were much more substantive. That's when we started to get the insanity of: You have to “facilitate” Kilmar Abrego Garcia's return from El Salvador, but you don't have to “effect it .” It was a silly way to slice the salami.

So I think the court was trying to be the decider while deciding as little as possible. But the other week was a big watershed moment when the court pretty much overturned a 90-year-old precedent on the shadow docket without explaining why. And I think that as these emergencies keep crashing on the shore of the court, we'll see the justices increasingly unable to render themselves invisible or inscrutable. You and I have been talking about when, exactly, we'll be in a constitutional crisis. But that can only happen when the court actually does something, right? When it orders something and the administration says “No, we're not going to do that.”

We might not be there quite yet. But I don't know that the justices can manage their public image and reputation by continuing to be incomprehensible, unreadable, or jurisdictional. I just don't think they can pull it off much longer without, at some point, rendering themselves irrelevant.