A Really Well Insulated Attic

“If the entire foundation falls out from under your house, it does no good to have a really well-insulated attic,” the judge said. “It sure would be nice if someone had our backs.” An anonymous federal judge made that comment to NBC News in a remarkable piece that published this morning.

The attic they are referring to is the U.S. Supreme Court. A Court that is increasingly viewed in some corners as having abandoned the role Article III of the Constitution assigns to it, to act as a check and balance on the executive branch. But the concerns the judges expressed were about the process the Supreme Court is using to make decisions. The reporting was not an inquiry into either the substance of the high court’s rulings or the politics behind it all.

It’s all about the shadow docket, a term you’re familiar with if you read Civil Discourse. It’s a slightly snarky term coined by legal academics to refer to the Court’s emergency docket, which is used for time-sensitive issues, like last-minute requests to stay executions in death penalty cases. The Court also hears appeals involving emergency civil relief on this docket. That means that cases where pro-democracy lawyers seek injunctions to block some of the most egregious steps this administration is taking land, with increasing frequency, on the shadow docket, and that’s where they get decided.

But these cases aren’t like the cases on the Supreme Court’s regular docket, the ones that get fully briefed, orally argued, and then decided on the merits in carefully crafted, lengthy opinions that fully set out the decision and the legal basis for it. This kind of shadow docket ruling happens early in a case, and the decision, as in the birthright citizenship cases where the Court rejected the use of nationwide injunctions to obtain relief but didn’t weigh in on whether Trump could erase birthright citizenship from the Constitution, are on procedural issues, not the substantive merits of a case. The decisions are typically unexplained and unsigned. There’s usually no opinion. Maybe you get a couple of paragraphs. Sometimes a stinging dissent. But there is very little basis for understanding why the court ruled the way it did and applying it in the lower courts.

This is frustrating for us. We’ve had this experience in a number of cases. It happened when the Supreme Court signed off on letting the Trump administration deport noncitizens to third countries (countries other than their country of origin), desperately unsafe places like South Sudan. It happened when the Court okayed DOGE’s foray into Americans’ confidential data held by Social Security. The Court let Trump fire members of independent agencies.

Apparently, it’s frustrating for judges in lower courts as well. After all, they are being called upon to apply the Supreme Court’s decisions. Shadow docket rulings are precedent that lower courts must follow. But how do you apply something when there is no explanation for why it happened? That’s the position the lower courts are in and it’s what led 12 federal judges to take the unprecedented step of speaking anonymously to an NBC reporter about what’s going on at the Supreme Court.

The reporting characterized it like this:

“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 had a deeper criticism too. One that is unique to the time of the Trump administration, where the president and his cronies have attacked judges who rule against the president’s policies or against him on personal matters, often placing those judges in the crosshairs of his supporters. As one judge put it, “A short rebuttal from the Supreme Court, they argue, makes it seem like they did shoddy work and are biased against Trump.” Trump cronies like Stephen Miller have accused judges who rule against the administration of engaging in a judicial coup and there have been calls for their impeachment. One judge said that the Supreme Court “is effectively endorsing Miller’s claims that the judiciary is trying to subvert the presidency.”

This unique criticism of the Supreme Court from lower court judges comes as the Court has granted 17 of 23 emergency requests made by the administration, asking it to undo lower court decisions on an emergency basis. The NBC report concluded that five of the 17 cases were decided without any substantive reasoning to back them up and seven of the others had less than three pages of explanation. And we’re talking here about highly important decisions about the scope of presidential power. Supreme Court decisions routinely exceed 100 pages.

Justice Kavanaugh seemingly conceded the issue in comments he made earlier this year that NBC included in its report: “‘There can be a risk ... of making a snap judgment and putting it in writing,’ even though it might not reflect the court’s ultimate conclusion further down the line.” But somehow the public is subjected to the Court’s snap judgement, and lower courts are expected to understand what the Court intends, when they can’t be bothered to write about it.

Some of the judges the reporter talked to hesitated to criticize Chief Justice John Roberts and the Court because of the tight spot that they are in, as are other institutions, under this administration. But it’s tough to figure out how the Court can require lower court judges and the public to follow their dictates when they don’t explain them. The court has a very difficult job. That job comes with unique privileges and unique obligations. The bottom line is, they signed up understanding that some of the most important disputes would come to them. They can’t back away when they do. The Justices need to do their jobs. And part of that job is upholding their constitutional responsibilities and not painting a bullseye on judges who sit on the lower courts.

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We’re in this together,

Joyce