The Roberts Court’s growing dependence on unsigned, unexplained orders is emboldening Trump and weakening public trust in the judiciary.
James Madison, the Constitution’s principal draftsman, wrote no less than five of the Federalist Papers to explain why separating the three branches of government was fundamental to preserving liberty. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many … may justly be pronounced the very definition of tyranny.”
Today, not only are all three branches of the federal government under the control of the Republican party, they are all acting in obedient servitude to a single individual: President Donald J. Trump.
To compound the problem, the U.S. Supreme Court is employing a rarely used procedure to create a law-free zone to help Trump aggressively implement his executive orders, despite the fact that they have already been found unconstitutional by numerous federal judges.
The American people expect that when the Supreme Court decides important constitutional issues affecting their lives and our very democracy, the Court will have seriously and thoroughly considered those issues.
And lower court judges, lawyers, elected officials and others who are familiar with Court procedure expect that the Court will have considered the legal briefs of the parties and additional friend-of-the-court briefs, conducted oral arguments, met in conference to evaluate the arguments of both sides, and exchanged drafts of potential opinions before issuing well-reasoned majority (and sometimes dissenting) opinions explaining the justices’ analyses, with citations to the facts of the case and legal precedent.
There are rare occasions—such as the impending execution of a death row inmate who has yet to exhaust their legal appeals—when the rules of the Supreme Court allow for immediate temporary stays, to maintain the status quo while the Court decides the case on the merits.
But now the six-member conservative super-majority on the current Court—all appointed by Republican presidents, and three by Trump—are abusing the emergency docket, popularly known as the shadow docket, not to maintain the status quo, but to disrupt it.
Every single executive order signed by Trump since Jan. 20, 2025, radically alters the federal government as it existed the day before. In many cases, lower court injunctions were issued to maintain the status quo while the case could be heard on the merits. But the Supreme Court has repeatedly issued stays of those injunctions, giving Trump a blank check to radically transform American society.
Using the shadow docket, the Supreme Court has sided with the Trump on issues ranging from dismantling the Department of Education, to banning transgender people from serving in the military, from allowing the administration to strip temporary legal status from hundreds of thousands of immigrants, to summarily deporting migrants to countries where they have no connection, including war zones.
From February to May of this year, Trump lost 75 percent of the time in the federal district courts. In fact, he lost a whopping 96 percent of the decisions in May alone. And while you might expect him to lose in front of Democrat-appointed judges (over 80 percent of the time), he’s also losing in front of Republican-appointed judges (over 72 percent).
But he’s enjoying lopsided victories in the Supreme Court by means of the shadow docket.
Whatever the Court may eventually decide on the merits of these cases, in the meantime Trump and the Supreme Court are wreaking havoc in the lives of federal employees and in long established American institutions.
On Jan. 27, 2025, Trump illegally fired Gwynne Wilcox, the first Black woman to serve on the National Labor Relations Board and the first Black woman to chair that agency.
On Feb. 10, he illegally fired Cathy Harris, a member of the Merit Systems Protection Board (MSPB).
Congress has established by law that officials such as Wilcox and Harris could not be fired except “for inefficiency, neglect of duty, or malfeasance in office.” Trump cited no such grounds.
Both women sued and won preliminary injunctions from federal judges.
But on May 22, by a 6-3 vote, the Supreme Court granted Trump’s request for an emergency stay of both injunctions.
While the majority issued only a short two-page unsigned order, Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson dissented, in a scathing opinion.
The dissent, written by Kagan, began by citing the unanimous Supreme Court opinion in Humphrey’s Executor (1935), which specifically denies the President the authority to fire members of independent administrative agencies without cause. In its terse order, the majority had neither cited nor distinguished that seminal decision.
Kagan pointed out that Humphrey’s “has stood as a precedent of this Court” for 90 years. It “undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.”
Kagan accused Trump of taking “the law into his own hands,” yet now “this Court effectively blesses those deeds.” Humphrey’s, she argued, “remains good law, and it forecloses both the President’s firings and the Court’s decision to award emergency relief.”
To further support her point, Kagan cited her very own conservative colleague, Justice Amy Coney Barrett, who four years ago warned that the Court considers emergency applications “on a short fuse without benefit of full briefing and oral argument” and resolves them “without fully (or at all) stating our reasons.”
“And nowhere is short-circuiting our deliberative process less appropriate,” Kagan pointed out, “than when the ruling requested would disrespect—by either overturning or narrowing—one of this Court’s longstanding precedents, like our nearly century old Humphrey’s decision.”
“Today’s order,” Kagan concluded, “favors the President over our precedent; and it does so unrestrained by the rules of briefing and argument—and the passage of time—needed to discipline our decision-making.”
The dissenters, she confirmed, would have denied Trump’s application “based on the will of Congress, this Court’s seminal decision approving independent agencies’ for-cause protections, and the ensuing 90 years of this Nation’s history.”
Or take another appalling example.
On July 14, 2025, in McMahon v. New York, the Supreme Court, again in a 6-3 vote, granted Trump’s request for an emergency stay of a preliminary injunction which had prevented him from dismantling the Department of Education. The entire order consisted of four sentences which merely described what had happened in the lower courts. No findings. No reasoning.
No case citations. In stark contrast, Justice Sotomayor issued a comprehensive 19-page dissent, which was joined by Justices Kagan and Jackson.
The entire order consisted of four sentences which merely described what had happened in the lower courts. No findings. No reasoning. No case citations.
In her dissent, Sotomayor began very simply: “This case arises out of the President’s unilateral efforts to eliminate a Cabinet-level agency established by Congress nearly half a century ago: the Department of Education.”
Yet, “by executive fiat, the President ordered the Secretary of Education to ‘take all necessary steps to facilitate the closure of the Department.’” Secretary Linda McMahon dutifully “gutted the Department’s work force, firing over 50 percent of its staff overnight.”
Sotomayor reminded her conservative colleagues how the judicial branch should have responded to such lawlessness. “When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it.”
She pointed out that “[t]wo lower courts rose to the occasion, preliminarily enjoining the mass firings while the litigation remains ongoing. Rather than maintain the status quo, however, this Court now intervenes, lifting the injunction and permitting the Government to proceed with dismantling the Department.” She called that decision “indefensible” because it hands “the Executive the power to repeal statutes by firing all those necessary to carry them out.”
“The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave.” The Founders “entrusted the lawmaking power to the Congress alone,” and “[t]here is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.” Congress “created the Department, and only Congress can abolish it.”
Sotomayor concluded that the “President must take care that the laws are faithfully executed, not set out to dismantle them.” While that “basic rule undergirds our Constitution’s separation of powers,” the majority “rewards clear defiance of that core principle with emergency relief.”
The takeover of the Supreme Court by a hyper-partisan faction has undermined the separation of powers and, as Madison warned, edged us closer to tyranny. History will no doubt record how the Roberts Court manipulated its own procedures in ways that enabled authoritarianism rather than defending the Constitution.
This moment is a reminder of how vital it is for the American people to stay vigilant in protecting our democracy. Presidents hold the power to appoint justices whose interpretations shape the Court for generations, and those choices deeply affect whether our constitutional rights are safeguarded or eroded. An engaged, informed public is the only safeguard against abuses of power.
Great Job Stephen Rohde & the Team @ Ms. Magazine Source link for sharing this story.
