The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Mistaking Adherence to Formalist Principle for Appeasement
The Supreme Court's critics are too quick to assume the Court's orders are motivated by political considerations as opposed to principle.
Earlier this month I participated in a Supreme Court term wrap-up event at the National Constitution Center (co-sponsored by Texas A&M's Center for the Structural Constitution). On a separate panel, Georgetown law professor Steve Vladeck suggested the Supreme Court's failure to confront and constrain the Trump Administration amounted to appeasement, and to be sure no one missed the point, he compared Chief Justice Roberts to Neville Chamberlain. According to Professor Vladeck, the best defense that could be made of the Supreme Court's repeated grants of emergency relief to the Trump Administration was that the Court was avoiding a messy confrontation between Article III and Article II -- a confrontation that the judiciary would likely lose.
Some may well ascribe the Court's actions to prudential judgments about when and whether to assert judicial authority to constrain the executive branch. I think a better explanation for the Court's behavior is that a majority of the Court is keenly aware of the limits on federal court jurisdiction and remedial authority, and is properly concerned that lower courts have been too quick to transgress such constraints. Put another way, a majority of the Court largely accepts formalist constraints on judicial power and rejects the proposition that the proper response to executive branch overreach is for the judiciary to respond in kind.
I expand on this point in my latest Civitas Outlook column, "Mistaking Principle for Appeasement." Here's a taste:
A much simpler explanation for the Court's decisions is that the justices are doing their level best to resolve the legal questions before them in accordance with the law, cognizant of the limits of their own authority. While the justices have been stingy in offering explanations for decisions made on an expedited basis on the "shadow docket," the rationales behind their actions are not hard to discern. Much as in Trump v. CASA, where the Court's conservative majority held that district courts lack the equitable power to impose universal injunctions, the justices are resolving specific questions in the context of specific cases, rather than seeking to pronounce on the ultimate legality or wisdom of the executive branch's initiatives.
The Court has not been asked to determine whether the Trump Administration is drawing within the lines and complying with federal law in every instance—and in many instances is clear that it is not. Rather, the Court has been asked to rule on specific questions raised in specific cases, such as whether a district court correctly concluded that a particular action was unlawful, was properly before the court, or is even the sort of question that the judiciary can resolve. As Justice Barrett reminded us in her Trump v. CASA opinion, "federal courts do not exercise general oversight of the Executive Branch."
It has been black-letter law since the Founding that not every unlawful act has a remedy in federal court. (Just ask William Marbury.) Some cases present nonjusticiable political questions. In other cases, no plaintiff can satisfy the requirements of Article III standing. In still others, Congress may have channeled litigation to particular courts or required legal challenges to be considered at a particular time. And even when litigation against the executive branch is permissible, courts may be constrained in the remedies they may provide.
Judicial resolution of specific cases or controversies may constrain executive action, but it is not the duty of the courts to police all executive branch conduct. Not all executive branch overreach may be remedied by the judicial power.
In case it is not clear, my argument is not that every action the Trump Administration is lawful. Quite to the contrary, I believe the Trump Administration has exceeded the scope of executive power and engaged in unlawful acts and omissions, ranging from its vindictive assaults on law firms for representing the wrong people and its claimed authority to dispense with the TikTok ban. But the Court is not called upon to make universal pronouncements about the Trump Administration. It is called upon to resolve specific cases in accordance with the law. And even if we think the Court as erred in some cases, we should not be so quick to ascribe political or prudential motives, when principled explanations suffice.
UPDATE: I agree with those who argue that the Court should endeavor to offer more fulsome explanations of its various "shadow docket" orders. This would not require drafting full opinions, let alone hearing argument (steps which would, in many of these cases, keep the improperly entered district court injunctions in place), and rushed opinions may not always be preferable to no opinion. But providing even a cursory explanation for why the majority believes the government's claims would be likely to succeed on the merits would provide greater guidance for lower courts and help insulate the Court from much criticism, even in those cases in which the reasons for the Court's actions should be relatively clear.
