Chief Justice Roberts Broke The Fourth Wall in Cook

This unusual opinion suggests something happened behind the scenes over the past ten months.

For years, Justice Kagan was overtly critical of the Supreme Court's approach to emergency applications. In written dissents and public speeches, Kagan fed into the nefarious "shadow docket" narrative. She may as well have blurbed Steve Vladeck's book. Yet, I've noticed over the past year or so that rhetoric from Justice Kagan has faded. Indeed, Kagan testified that she would rather "not now . . . call it the shadow docket . . . because we have done . . . a better job . . . where appropriate [of] explaining ourselves, at least to a moderate degree." Kagan added, "we have gotten more experienced in these constant requests that are coming to us about requests for emergency relief . . . and we have issued opinions, and sometimes majority and dissenting opinions accordingly."

Kagan was almost certainly referring to Trump v. Cook, which might be the slowest emergency docket case of all time. Remember, President Trump purported to remove Governor Lisa Cook from the Federal Reserve on August 25, 2025. Twelve days later the District Court granted a preliminary injunction. Four days after that, the D.C. Circuit denied the government's motion to stay. The case reached the Supreme Court on September 18, 2025. It would take the Court more than 280 days to decide the case in its "interim" posture, with more than 80 pages of majority, concurring, and dissenting opinions.

Justice Alito's dissent laid out the glacial chronology.

The President then applied for a stay from this Court. When that application arrived here, this litigation was just 21 days old. There had been only two rounds of abbreviated briefing below and no meaningful development of a factual record. Indeed, the record does not even contain copies of Cook's allegedly fraudulent mortgage applications. Of course, parties may appropriately seek (and courts may appropriately grant) stays early in a litigation. No court, including this Court, should sit on its hands when interim relief is appropriate. But this does not mean that the Court must reach out to opine on each issue that could conceivably arise in a case's future. Here, the incipiency of this case and the complexity of the issues that it presents counseled in favor of a light touch by this Court, regardless of whether we granted or denied the application. To that end, the Court should have resolved the President's application shortly after we received it. And in doing so, we should have focused on the few issues that the courts addressed below. If a majority had desired, we could have issued a statement explaining our decision. That is exactly how we have handled nearly all our stay applications in recent years.

Had the Court denied the stay in September or October of 2025, the lower courts could have proceeded to decide the case on the merits, and presented the Supreme Court with a regular appeal. But the Court (and by Court, I mean the Chief Justice) chose a different path. Alito explains further:

Although the panel performed admirably given the four days that it had to decide the President's stay motion, nobody can doubt that the panel would have produced more comprehensive opinions if it had even a fraction of the 280-plus days that this Court has spent with the case. Either way, this Court could have reentered the fray when we inevitably granted certiorari. Instead, the Court departed from its normal practice and "deferred" ruling on this application, bringing proceedings in the lower courts to a 9-month standstill. 606 U. S. 1062 (2025). We then ordered the parties to submit more briefing than they had filed at any other point in this litigation. In January, we held oral argument, marking just the second in-court proceeding in this entire suit. The Court now issues a full-length opinion that purports to resolve many complicated and novel legal questions on an underdeveloped record while ignoring lurking jurisdictional issues."Either out of humility or out of self-respect (one or the other), the Court should decline to answer" these "incredibly difficult" questions in this case's current posture. PGA TOUR, Inc. v. Martin, 532 U. S. 661, 700 (2001) (Scalia, J., dissenting).

Moreover, the Court reached out to decide several significant constitutional questions that were not necessary to decide. Is the Federal Reserve's so-called "independence" consistent with the separation of powers? Do the federal courts even have jurisdiction to review the President's termination of a Governor? Did Cook even have a "cause of action" to challenge her removal? Justice Barrett raises these, and other questions in her concurrence. But the Supreme Court was content to decide a landmark case on its "emergency" docket, leapfrogging over all prudence. This unusual posture was sure to placate Justice Kagan and the Court's critics, but is at odds with the Chief's self-professed modus operandi.

Indeed, something seems to have happened behind-the-scenes in this case. In most cases, the Chief Justice barely acknowledges the dissent, and offers sparse responses, if that. In Barbara, the dissents were more than five times as long as the majority. Roberts didn't care to respond because he had five votes.

Yet in Cook, Chief Justice Roberts responds nearly point-by-point to Justice Thomas. I think this was part of an effort to justify the Court's decision to reach the constitutional question. One would expect Roberts to simply say in a footnote "We need not reach the status of the constitutionality of the Federal Reserve's for-cause protections…" But no such luck. The Federal Reserve cannot be kept in "limbo" so let's respond to the brash Justice Thomas.

Then there is this passage where Roberts which responds directly to his colleagues:

How much to say on our interim docket—and how much to say in response to a dissent—is not reducible to any mechanical formula; it is ultimately a matter of prudence, upon which reasonable minds can (and often do) disagree. See Mirabelli v. Bonta, 607 U. S. 492, 501 (2026) (BARRETT, J., concurring) ("Interim applications routinely require the Court to balance the lock-in risk of saying too much against the transparency cost of saying too little"); compare Trump v. Illinois, 607 U. S. ___ (2025), with id., at ___ (KAVANAUGH, J., concurring in judgment) (slip op., at 6), and id., at ___ (GORSUCH, J., dissenting) (slip op. at 2). In this extraordinary case, we have had the benefit of not only amici and oral argument but months of internal consultation and deliberation. We see no reason to leave the public in limbo, or to sow doubt as to the status of one of our Nation's (and theworld's) most important financial institutions. Althoughwe appreciate that others may see matters differently, wewould not so quickly unsettle this "special arrangement sanctioned by history." Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd., 601 U. S. 416, 467, n. 16 (2024) (ALITO, J., dissenting).

First, Roberts faults Barrett for inconsistency. In Mirabelli (decided in March 2026), Barrett favored deciding the merits, even at the risk of lock-in. Indeed, the Chief Justice joined that opinion. I was surprised Roberts joined that concurrence, as he usually says nothing at all on emergency docket cases. But now that join comes into focus. Roberts joined Barrett's concurrence, even though Barrett chose not to join Roberts in Cook. Roberts may have even joined Barrett to nudge her into flipping in Cook. Roberts almost certainly wrote the narrow per curiam in Mirabelli. Why do more?

In Mirabelli, Barrett chose to reach the merits, but in Cook, she did not. Again, when Mirabelli was decided, Barrett had to have known what Roberts would say in Cook. I have this sinking feeling that Barrett's vote flipped in Cook. Maybe she was troubled so much by the lack of a cause of action that she just couldn't go along with the majority. Maybe she really liked Aditya Bamzai and Aaaron Nielson's article, and did not think the Bank of the United States was a valid precedent. Something happened here.

Second, Roberts draws a contrast between Justice Kavanaugh's concurrence in Trump v. Illinois with Justice Gorsuch's dissent. In that case, Justice Kavanaugh would have ordered additional briefing and oral argument--exactly what was done in Cook. By contrast, in Illinois, Justice Gorsuch would not have decide the merits question with limited briefing. Here, I think Roberts was giving credence to Kavanaugh's concerns.

Third, the Chief Justice appears to break the fourth wall. He expressly references "months of internal consultation and deliberation." What is going on here? It goes without saying that the Justices will always consult and deliberate. But "months"? Again, the application was filed in September, the following month the Court set the case for oral argument, the case was argued in January, and decided on the last day of June. I get this feeling that deliberations continued well after the case was argued, maybe through the end of the term. Justice Kavanaugh and the Chief were locked in from the outset. This sentence provides some more proof that Justice Barrett may have vacillated in Cook.

There is much more that I will say about Cook in another piece, contrast the case with Slaughter. But here I'll close on a note about Roberts.

I appreciate Richard Re's attempts to reconcile the Chief Justice's votes in Cook and Barbara, and decisions over the course of two decades. But the levels of explanation are getting tough to follow. He is an "institutionalist"; he is an "institutionalist" who practices the doctrine of "one last chance"; he is an institutionalist who practices the doctrine of "one last chance" but still "moderates from the front"; he is an institutionalist who practices the doctrine of "one last chance" but still "moderates from the front" except when "extremism in defense of stability is no vice."

The ancients who favored the geocentric model of the universe kept confronting evidence that didn't conflicted with the model. So they started drawing "epicycles" to explain away the retrograde motion of certain planets. Over time, scientists recognized that the geocentric model was wrong, and the solar system revolved around the sun.

Our legal order has revolved around the Chief Justice for so long that it is tempting to offer a unifying theorem. But the most likely theory is the simplest. Robert is charge--not because he is the smartest judge or puts forward the most compelling theories. Rather, just like when he was an advocate, he found a way to count to five when it mattered. Or more precisely, to count to four--he has his own vote in hand.

The conclusion I reached some time ago is that Roberts is entirely situational. He decides each case on its own terms based on the political climate of the day. Roberts does as much as he thinks he can get away with, no more and no less. In one case, minimalism. In another case, maximalism. Rules of prudence are thrown to the wind when the cause is just. And the Chief Justice uses whatever magic is needed to get there.

Roberts is not an institutionalist. He is an illusionist. But like all other illusionists, once he is off the stage, he will be quickly forgotten. Chief Justice Marshall's decisions are still revered. Will anyone even remember the sorts of political compromises the Roberts Court navigated? Why did he vote to save Obamacare? Why did he vote to save Roe? I can barely remember the situations from the first Trump administration. Roberts's opinions may as well be written with disappearing ink.