"The Supreme Court Is Not Cowering Before Trump on the Shadow Docket"

"Nor is it taking a new approach."

A very interesting analysis at Executive Functions by Prof. Jack Goldsmith (Harvard), a leading scholar of executive power and of the separation of powers; an excerpt, though you should read the whole thing:

I have heard from a few people in recent days who think the Supreme Court is cowering before the Trump administration or, at least, is not adequately standing up to it.

Adam Liptak gave voice to a version of this view a few days ago. In contrast to the Court's "signature . . . sweeping claims about the meaning of the Constitution," he argued, the Court in the Trump cases has been issuing "a series of narrow and legalistic rulings that seem calculated to avoid the larger issues presented by a president rapidly working to expand power and reshape government." Liptak said this "new approach" was designed in part "to avoid a showdown with a president who has relentlessly challenged the legitimacy of the courts."

Liptak's stance is a little hard to understand. The cited cases with "sweeping claims"—on abortion, affirmative action, the Second Amendment, and the like—were decided on the Court's merits docket. But the Trump cases have occurred on the emergency orders or "shadow" docket where, as Liptak acknowledges, the Court must move quickly, with impoverished briefing and process, to "decide whether to pause lower court rulings, themselves preliminary and tentative." In this context, he correctly says, it is "understandable … that the justices may be reluctant to make grand pronouncements."

I am not sure how to square these views, but I agree with this last point, and will flesh it out below. The Court as of this posting has issued six emergency orders on Trump 2.0 actions, including last night's order in Noem v. Garcia. It is too early to know whether the Court is acting wisely on its emergency docket. Yet thus far it has neither bowed to the president nor proceeded in an untoward way.

Comments

[ah....Clem]

The court is treading very carefully, because they know as well as everybody else that Trump is itching to ignore their rulings, and when that happens we are in uncharted territory.

It's not clear that they are "cowering before Trump on the shadow docket", but it was abundantly clear that they were kow-towing to him last term on the *merits* docket with their delaying tactics and their made-up a doctrine of presidential immunity. It's not unreasonable to expect more of the same.

[Bob from Ohio]

"made-up a doctrine"

Name a doctrine that is not a "made-up"?

[MaddogEngineer]

Substantive due process and the right to privacy [eyeroll]

[Bob from Ohio]

LOL Those were "made up" a long time ago so are ok.

First time a former president was indicted so first time SCOTUS was faced with the question. So they crafted a decision, in 50 years that "doctrine" will no longer be "made up" but "established law".

[ah....Clem]

"Name a doctrine that is not a "made-up"?"

There's a comprehensive list at:
https://sedm.org/Litigation/10-PracticeGuides/SCDoctrines.pdf

I'll leave it as an exercise for the reader to determine which ones are based on language found in the US constitution and which are made up out of whole cloth.

There are examples from both categories; the "immunity doctrine" is clearly in the latter.

[rloquitur]

I think, honestly, they are trying to craft orders that will be followed, so there's no crisis. It's weak. Personally, I don't think the courts have any power to tell the government to bring an alien across the border. Mistake or not, he's an alien, and he's out of the country.

[mike petrik]

I agree, at least mostly. One cannot require the executive branch to do something that technically is not within its sole power to do, at least without committing an act of war. At most it can require best good faith efforts, which of course would be a feckless requirement when imposed on any administration that lacks good faith -- which would be all the recent ones.

[rloquitur]

Trump Admin basically just told the Obama judge to cool her jets. Ha ha.

The judge is letting her pique get the best of her. Kinda like "Judge" Boasberg.

[rloquitur]

https://hotair.com/ed-morrissey/2025/04/11/new-ice-arrests-convicted-illegal-alien-sex-offender-released-by-fairfax-couty-n3801692

This is why Trump is able to take liberties. Biden and the Dems own the lack of enforcement here. Boasberg is quite literally on the side of alien criminals.

[wvattorney13]

I wish the Court was much stronger in striking down lower court judges' rulings. That being said, I think any first year law student can write a brief that pulls CJ Roberts' heart strings. Just go for the middle that sets aside the District Court's ruling. That's the winner.