The Volokh Conspiracy
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John Roberts Serves A Blue Plate Special, And The Progressives Forget All Of Their Complaints About The Shadow Docket
Trump v. Illinois is Robertsian faux minimalism at its worst.
Trump v. Illinois is the kind of Supreme Court opinion written for the headlines. For example, the New York Times blared "Supreme Court Refuses to Allow National Guard Deployment in Chicago." Most people reading that headline might think that the Supreme Court struck down President Trump's exercise of executive power, or determined that there was no actual need to deploy the national guard. But none of that happened.
The actual basis of the decision has nothing to do with the President's Article II powers, or whether Trump properly found there was a valid basis to deploy the guard. The short per curiam ruling is at once narrow, yet extremely consequential. Indeed, the statutory argument the Court adopted was not advanced in the lower court by Illinois, but was raised in an eleventh hour amicus brief by Professor Marty Lederman.
In short, federal law empowers the President to federalize members of the National Guard if he is "unable with the regular forces to execute the laws of the United States." The Court finds that "regular forces" "likely refers to the regular forces of the United States military." The President did not point to any "source of authority that would allow the military to execute the laws in Illinois." Because the President has not done so, the President cannot show that those regular forces (the military) would be unable to execute the laws of the United States. QED.
If you just read the majority opinion quickly, everything seems to line up so easily and neatly. But once you peel back the shiny veneer, you realize that we have just been served another John Roberts Blue Plate Special. The Court purports to engage in minimalism: rather than deciding the difficult Article II issues, and determining how much deference the executive is owed, the Court resolves the matter on seemingly narrow statutory grounds. But any minimalism here is fake. The Court effectively neutered this statute. Because there will be very few cases where the President can use the military "regular forces" in domestic matters, it will be even rarer for the President to meet the predicate to federalize members of the National Guard. Perversely, as Justice Kavanaugh notes in his concurrence, "One apparent ramification of the Court's opinion is that it could cause the President to use the U.S. military more than the National Guard to protect federal personnel and property in the United States."
I can criticize Chief Justice Roberts and Justice Barrett with my eyes closed. (I admit I have a propensity for calling on people named Roberts to resign.) But the other three members who joined the majority in full have some chutzpah. Justices Sotomayor, Kagan, and Jackson simply ignored all of their complaints about the shadow docket. They decided a significant issue affecting presidential power on the emergency docket with scant briefing and no oral argument.
Let's break it down.
First, this issue has been percolating for some time. There have been many decisions issued by District Courts in Illinois, California, Oregon, followed by appeals to the Seventh and Ninth Circuit. The emergency application was filed back on October 17. Circuit Justice Barrett called for a response three days later on October 20. The reply brief was filed in October 21, the same day as Professor Lederman's amicus brief. Then, on October 29, the Court requested supplemental briefing on "[w]hether the term 'regular forces' refers to the regular forces of the United States military." But this briefing schedule was a bit more relaxed. Opening briefs were due on November 10, and reply briefs were due on November 17. The Court no longer seemed to be in a hurry, and had likely already concluded that the stay would be denied. Given that the initial reply on all issues was due within three days, the Court was really pumping the breaks here for a fairly discrete issue. Those briefs were filed on November 17. Then silence for more than a month. Again, the silence can be explained with the benefit of hindsight, as the stay was ultimately denied.
On December 23, late in the afternoon the Court issues its decision. The majority opinion was about three pages long. Justice Kavanaugh wrote a four page concurrence in judgment. Justice Alito wrote a sixteen page dissent. And Justice Gorsuch wrote a two-page dissent. Did the opinions just take this long to put out? Or did the Court hold the opinion till the last minute for a slow news cycle? 'Twas the night before Christmas, when all through One First, Not a justice was stirring, they were all dispersed.
Second, given that the Justices took nearly two months to decide this case, there was more than enough time to schedule an emergency oral argument. The need for oral argument was especially acute since this case implicated core presidential powers, and there were very few precedents. It is telling the majority opinion only cites a single case from 2019 about statutory silence. Moreover, oral arguments seem especially appropriate since the Justices were poised to rule on an issue based on argument that the Plaintiffs did not advance below. Justice Kavanaugh made this point in his concurrence.
Third, in many cases, Justice Sotomayor, Kagan, and Jackson have complained that the Court decided important issues on the emergency docket. For example, in Dep't of State v. Aids Vaccine Advoc. Coal., Justice Kagan lamented that the Court decided the case "with scant briefing, no oral argument, and no opportunity to deliberate in conference." In the national guard case, there was no oral argument. Was there an opportunity to deliberate at conference? The Court did not have a regularly scheduled conference between the Lederman brief on October 21 and the request for briefing on October 28. Was the briefing here "scant"? Well, there was a call for supplemental briefing, so maybe not?
I think it is somewhat poetic that Justice Alito's dissent uses almost the same phrasing as Justice Kagan used:
To make matters worse, the Court reaches out and expresses tentative views on other highly important issues on which there is no relevant judicial precedent and on which we have received scant briefing and no oral argument.
Alito has been guilty of deciding major cases without oral argument, but Kagan and company have some explaining to do.
Perhaps the best response is here the Court denied relief, and Justice Kagan's admonition only applies when the Court grants relief. I'm not sure that argument works. An injunction and a stay are two sides of the same coin. If the district court enters an injunction, and that grant is in error, then the proper remedy is an emergency stay. If the district court declines to enter an injunction, and that denial is in error, then the proper remedy is an emergency injunction. During the past nine months (yes it has only been that long), virtually every emergency docket case that has come to the Supreme Court has been from a liberal lower court.
However, during the prior four years, most of the Supreme Court's emergency docket cases came from my beloved Fifth Circuit. In several cases, the lower courts did not grant the progressive's favored ruling, and the Biden Administration took an emergency appeal. In Whole Woman's Health v. Jackson, for example, Chief Justice Roberts dissented, joined by Justices Breyer and Jackson, and complained that the motion to vacate the stays was made "without ordinary merits briefing and without oral argument." There are more such cases, all resolved without oral argument: Austin v. U.S. Navy Seals 1-26 (granting stay), NetChoice v. Paxton (vacating stay), United States v. Texas (granting stay), FDA v. Alliance for Hippocratic Medicine (granting stay), Danco Laboratories v. Alliance for Hippocratic Medicine (granting stay), and Garland v. Vanderstok (granting stay).
I don't recall complaints in these cases. It's as if the Court's progressives suddenly forgot their primary objections to the shadow docket. It's good to have five, or even six votes. Speaking of six votes, let's talk about Justice Kavanaugh.
Fourth, Justice Kavanaugh styled the opinion as concurring only in the judgment. Is that right? He actually agreed with the part of the majority's analysis that "the statutory term 'regular forces' likely refers to the U. S. military, not to federal civilian law enforcement officers." But Justice Kavanaugh does not agree with the majority's "complicated and debatable statutory analysis." That doesn't seem like a concurrence in judgment. That seems like concurring in part and dissenting in part. If this was a merits docket case, the majority opinion would be divided into several roman numerals, and the Justice would join Parts I (meaning of regular forces), but not Part II (statutory analysis). Since there were no roman numerals, it was not possible to indicate which parts he agreed and disagreed with.
In recent years, Justices have played a bit fast-and-loose about how they style their opinions. For example, Justice Barrett labeled her dissent in San Francisco v. EPA as "dissenting in part," but it seemed she was really dissenting straight up. Did Justice Kavanaugh not list his opinion as concurring in part and dissenting part to avoid confusing the bottom line vote count? Did he think something labelled as a dissent-in-part was less likely to be cited? There is some obfuscation going on here.
Fifth, given Justice Kavanaugh's desire to "not decide more," he sure does raise a lot of issue in footnotes. Footnote 1 reminds us that the President can "federalize the National Guard if there is an 'invasion' or 'rebellion.'" The issue of "invasion" is still very live before the courts. Stay tuned for the Fifth Circuit en banc oral argument next month.
Footnote 2 discusses the Insurrection Act and the "President's long-asserted Article II authority." Here, Justice Kavanaugh does not cite any court decisions, but instead invokes William Rehnquist's OLC Opinion from 1971. Curious that the majority opinion cites the Rehnquist opinion, but doesn't name him. I really get the sense that Chief Justice Roberts had a strange relationship with his former boss. During the tariff argument, Roberts quickly shot down the relevance of Dames & Moore, saying that the Court "went out of its way to say that it was issuing a very narrow decision that it pretty much expected to apply only in this case." Kavanaugh also cites Jack Goldsmith's new Substack. Then, Kavanaugh reaches out, and draws a significant inference: "One apparent ramification of the Court's opinion is that it could cause the President to use the U. S. military more than the National Guard to protect federal personnel and property in the United States." This sentence will likely be quoted in generations of OLC opinions.
In Footnote 3, Justice Kavanaugh repeats his understanding that this is just the interim ruling that will govern the matter until the merits case returns to the Court. (I suspect this case will be over soon.) But he leaves open the possibility that "the Court could reconsider its view of the law or the Government might seek to advance new or different arguments." But what new argument could there be? The meaning of "regular forces" is now settled? Or is Kavanaugh hinting that there might be some way for Trump to invoke the potential use of the military here as a defense? I don't quite get the point, but there is something.
Footnote 4 takes a detour to the Fourth Amendment. That seems far afield from the statutory issue. Dan Epps notes at the Interim Orders Blog that Kavanaugh was trying to "walk back his opinion" in Perdomo. Epps adds, "Justice Kavanaugh seems more interested than other justices in using his opinions to speak to potential critics (which I actually find admirable) and that impulse may be playing a role here." Well, I sure don't find that trait admirable, but I'm not sure if that is what is going on. Really, this entire concurrence seems a bit off. Usually Kavanaugh is very focused and on point. Here, he is all over the map. He takes pains to distance himself from the majority, even though the delta is quite small. And he takes pains to say the Court should not decide extra issues, even as he engages in extreme frolics and detours into presidential powers. If I had to guess, Justice Kavanaugh was the person holding this opinion up, and not the dissenters. It took him some time to figure this concurrence out. The Chief Justice likely wrote the majority opinion before lunch. Justice Alito probably banged out his dissent in a few days. Now, onto the dissent. It is a doozy.
Sixth, Justice Alito is livid the Court decides the case on grounds that the plaintiffs did not advance in the lower court. Just last month, the Court summarily reversed the Fourth Circuit in Clark v. Sweeney for departing from the principle of party presentation. This principle was firmly established in United States v. Sineneng-Smith (2020). And remember who wrote the panel opinion in that case? It was Judge Reinhardt. Well sort of. He was on the panel when it was argued, but died before it was decided. Justice Ginsburg wrote, "the Ninth Circuit's radical transformation of this case goes well beyond the pale."
Justice Alito explains the issue plainly:
If a party passes up what seems to us a promising argument, we do not assume the role of advocate. Instead, we normally decide the questions that the parties choose to present. In this case, the Court has unnecessarily and unwisely departed from standard practice. It raised an argument that respondents waived below, and it now rules in respondents' favor on that ground.
But that John Roberts blue plate special is too appetizing, especially when so many other case went Trump's way. Justice Barrett couldn't resist.
I do not have the time now to comment on all of the merits discussions in Justice Alito's dissent. Indeed, I'm not sure it matters, since the Court has settled the issue. It is unlikely this case returns on the merits docket, so this might be the whole ball game.
Seventh, and finally, we have Justice Gorsuch. He did not join Justice Alito's dissent. Rather, he wrote a short separate dissent. Justice Gorsuch expressed a lot of hesitation and caution, finding this case to be very difficult. He raises a host of questions involving the Article I militia clause and the Article IV Guarantee Clause:
And if, as all parties seem to assume, today's Guard is the successor to the militia of the founding era, how far can this inherent Presidential authority extend before it intrudes on Congress's prerogative to decide when the militia may be used to execute the laws? See Art. I, §8, cl. 15. If all those questions were not fraught enough, an even graver one lurks here too:When, if ever, may the federal government deploy the professional military for domestic law enforcement purposes consistent with the Constitution? See, e.g., Art. IV, §4; Amdt. 14, §5.
Here, I would cite an essay on the Militia Clause by Professor Robert Leider from a certain Guide to the Constitution, the name of which is not terribly important now.
To avoid those questions, Justice Gorsuch would resolve the case solely on the basis of the party presentation principle.
That's it for now. Have a blessed Christmas everyone. I hope 2026 brings blessings to all of our readers (even those who hijacked the Google document I inadvertently linked to).
