from the calvinball dept
Last week, we wrote about two federal judges who were clearly fed up with the Supreme Court’s shadow docket nonsense—one sarcastically “apologizing” to Justices Gorsuch and Kavanaugh, the other flat-out calling their approach “Calvinball.” Turns out those weren’t isolated incidents. They were canaries in the coal mine.
Soon after that, NBC News dropped a remarkable report revealing that federal judges across the country—appointed by both Democratic and Republican presidents, including Trump—are openly criticizing the Supreme Court’s handling of emergency cases. And when I say “openly,” I mean they actually got ten federal judges to go on the record (anonymously) calling out the Court’s approach.
And this was all before the Supreme Court basically set the Fourth Amendment on fire via the shadow docket earlier this week.
Having judges speak out like this is not normal. Federal judges don’t usually air their grievances with the Supreme Court to reporters. The fact that a dozen judges were willing to talk to NBC about this—even anonymously—suggests we’re looking at something approaching a judicial revolt.
Here’s how NBC describes the pattern that’s emerged:
Lower court judges are handed contentious cases involving the Trump administration. They painstakingly research the law to reach their rulings. When they go against Trump, administration officials and allies criticize the judges in harsh terms. The government appeals to the Supreme Court, with its 6-3 conservative majority.
And then the Supreme Court, in emergency rulings, swiftly rejects the judges’ decisions with little to no explanation.
The judges aren’t just frustrated with being overturned—that’s part of the job. They’re frustrated with being hung out to dry by a Supreme Court that issues cryptic orders and then expects everyone to treat them as binding precedent.
“It is inexcusable,” a judge said of the Supreme Court justices. “They don’t have our backs.”
Another judge put it more bluntly:
The Supreme Court, a second judge said, is effectively assisting the Trump administration in “undermining the lower courts,” leaving district and appeals court judges “thrown under the bus.”
The numbers are staggering. Since Trump took office in January (and not including the latest data from this week), the DOJ has asked the Supreme Court 23 times to block lower court rulings on an emergency basis. The Court granted 17 of those requests. And NBC’s analysis found that five of those 17 decisions “included no substantive reasoning at all,” while seven others “included less than three pages of explanation.”
And we already know it’s at least one more to add to that list based on what happened this week.
It would be one thing (not a good one) if these were just “emergency stays” to deal with a rapidly changing situation. At least some of that would be somewhat understandable. But as we’ve been describing over and over again, the Supreme Court is treating these rushed, unexplained orders as binding precedent… and expecting lower court judges to understand and enforce their unexplained rules.
Ten of the 12 judges who spoke to NBC News said the Supreme Court should better explain those rulings, noting that the terse decisions leave lower court judges with little guidance for how to proceed. But they also have a new and concerning effect, the judges said, validating the Trump administration’s criticisms. A short rebuttal from the Supreme Court, they argue, makes it seem like they did shoddy work and are biased against Trump.
The judges are actually underplaying this. We’ve seen over and over when judges rule against the Trump admin, that MAGA supporters insist that the judges are “enemies of the people” and the Supreme Court is actually making that worse. Because when they do these half-baked, unexplained brain farts, leaving no guidance at all for lower court judges, and then sweep in and scold the judges later, it only reinforces that nonsense argument.
And, yes, judges are well aware of how this puts them all at risk.
“It is inexcusable,” a judge said of the Supreme Court justices. “They don’t have our backs.”
All 12 judges spoke on condition that they not be identifiable, some because it is considered unwise to publicly criticize the justices who ultimately decide whether to uphold their rulings and others because of the risk of threats.
Judges are increasingly targeted, with some facing bomb threats, “swattings” and other harassment. Judges especially involved in high-profile cases — and their families — have reported receiving violent threats.
Or, putting it more starkly:
The judge who said the Supreme Court justices are behaving inexcusably has received threats of violence and is now fearful when someone knocks on the door at home.
If major efforts are not made to address the situation, the judge said, “somebody is going to die.”
The three Democratic-appointed Justices each have tried to raise the alarm about this abuse of the shadow docket and how much damage it’s doing not just to the rule of law, but to the wider judiciary as well. But without much luck.
In the article, Just Kagan highlights how her colleagues are failing judges on the lower courts:
She referred to a different case in which Massachusetts-based Judge Myong Joun issued a ruling that blocked Trump administration plans to downsize the Education Department. The administration quickly appealed to the Supreme Court, which ruled in favor of the government.
Kagan noted that the case raised several legal issues, including what authority Joun had to step in, but the Supreme Court’s terse order did not explain on what grounds it was blocking his decision. The only writing was from liberal Justice Sonia Sotomayor, who penned an 18-page dissent.
“What’s that court supposed to think?” Kagan asked, referring to Joun. “It’s just impossible to know, and that puts the [lower] court in a very difficult situation.”
Meanwhile, Justice Brett Kavanaugh is out there thinking the biggest problem is people calling it the “shadow docket” or the “emergency docket.” He spent last week trying to rebrand this mess. At a judicial conference, he pushed for calling it the “interim docket” instead of the “shadow docket”:
“I think the term ‘interim docket’ best captures it,” Kavanaugh told attendees at the US Court of Appeals for the Sixth Circuit’s conference in Memphis on Thursday, after he was asked to “settle” the dispute over what to call the justices’ oft-criticized practice of issuing brief orders in pending cases without explanation.
Though the docket has also been called the “emergency docket,” for its handling of emergency requests for relief — or the “shadow docket” by critics who see it as opaque —Kavanaugh noted that not all of these requests the justices field are emergencies.
“It’s not real catchy, so I’m not sure it’ll bloom, but that’s the term” Kavanaugh said of his preferred label, which he’d also invoked in July at the Eighth Circuit’s conference in Kansas City.
Earlier this year, Kavanaugh also tried to defend this “no explanation” nonsense by arguing it might be more dangerous to give a full explanation:
Kavanaugh, speaking Thursday at the Eighth Circuit Judicial Conference in Kansas City, Missouri, said there can be a “danger” in writing those opinions. He said that if the court has to weigh a party’s likelihood of success on the merits at an earlier stage in litigation, that’s not the same as reviewing their actual success on the merits if the court takes up the case.
“So there could be a risk in writing the opinion, of lock-in effect, of making a snap judgment and putting it in writing, in a written opinion that’s not going to reflect the final view,” Kavanaugh said.
But if that’s the case, then these cases should not, under any circumstance, bind the lower courts! It completely misses the point. The problem isn’t that they’re issuing emergency orders—it’s that they’re treating those orders as binding precedent while providing no guidance about what they actually mean.
Kavanaugh also gave a bizarre “well, we’re only human, and it’s tough for the justices to be consistent” explanation:
“It’s possible we screwed up, very possible, we’re human. But it’s also possible, and oftentimes is the case, that it’s the product of nine of us, or at least five of us, trying to reach a consensus or a compromise on a particular issue that might be difficult,” Kavanaugh told judges and lawyers attending the 6th Circuit Judicial Conference. “I’m fully aware that can lead to a lack of clarity in the law and can lead to some confusion, at times.”
“Consistency is a lot easier when it’s one person than when it’s nine. We try to be consistent. … We can do better. We’re always trying to do better,”
That’s not exactly reassuring when you’re dealing with constitutional rights and the rule of law.
And also, if you admit that you can’t be consistent and you’re making the judgment calls on too little information and you don’t want to explain you’re reasoning, maybe don’t sign onto a shadow docket ruling scolding judges for not understanding your vibes-based approach to interpreting the law?
When so many federal judges with decades of experience are willing to go to reporters—even anonymously—to criticize the Supreme Court’s approach, that’s not just institutional friction. That’s a breakdown of how the judicial system is supposed to work.
The Supreme Court has turned constitutional law into a guessing game where even experienced judges can’t figure out the rules. And when those judges try to follow established precedent instead of reading tea leaves, they get accused of “defying” the Court and face threats of violence.
That’s not jurisprudence. That’s not the rule of law. It’s a modern star chamber with no public legitimacy.
Filed Under: brett kavanaugh, clarity, elena kagan, emergency docket, judges, judiciary, neil gorsuch, precedent, shadow docket, supreme court
