The Supreme Court’s Shadow Docket Has Become A Lawless, Explanation-Free Rubber Stamp For Trump’s Authoritarian Agenda

When Joe Biden wanted the Department of Education to forgive student loans, the Supreme Court shut him down hard. The Court spent pages in Biden v. Nebraska explaining why the Department lacked authority under the HEROES Act, demanding clear congressional authorization" for such a significant policy change.

But when Donald Trump wants to dismantle the entire Department of Education without any congressional authorization? That gets a rubber stamp with no explanation at all.

The hypocrisy is staggering, and it reveals everything you need to know about how the Roberts Court actually operates.

Two weeks ago, I wrote about how the Supreme Court blessed human trafficking with literally zero explanation. The Court stayed a lower court order that required basic due process protections for people being shipped to random countries around the world-including war zones where migrants face torture, slavery, or death. No analysis. No reasoning. Just: go ahead and traffic people to South Sudan" (which has now happened).

This wasn't an aberration. Yesterday, they did it again. This time, they're letting Trump dismantle the Department of Education.

In Linda McMahon v. New York, the Supreme Court issued an order that allows the Trump regime to move forward with gutting the Department of Education.

Without explaining the reasoning.

After Trump's Secretary of Education Linda McMahon put in place plans to fire nearly 50% of the department's workforce overnight-what she called the first step on the road to a total shutdown of the Department"-two lower courts stepped in to block this obvious violation of the separation of powers.

The Supreme Court's response? Lift the injunction. Let Trump proceed with dismantling a Cabinet-level agency that only Congress has the power to abolish. And offer absolutely no explanation for why this is legal or constitutional.

The Pattern Is Clear: Trump Asks, SCOTUS Delivers

As law professor Steve Vladeck pointed out, the statistics are damning:

Since April 4, #SCOTUS has issued 15 rulings on 17 emergency applications filed by Trump (three birthright citizenship apps were consolidated).

It has granted relief to Trump ... in all 15 rulings.

It has written majority opinions in only 3.

Today's order is the 7th with no explanation at all.

Fifteen for fifteen. That's not jurisprudence-that's a rubber stamp. By way of comparison, in the 16 years of the George W. Bush and Barack Obama presidencies, the two presidents combined only asked (let alone got) emergency docket relief eight times.

The emergency docket is supposed to be for... emergencies. It's supposed to preserve the status quo while more fully briefed cases make their way through the courts. Instead, the Court is using it to let Trump implement his most legally dubious policies while avoiding the scrutiny that comes with actually having to explain their reasoning.

And the hypocrisy here is staggering.

Just two years ago, having the Department of Education forgive student loans was supposedly beyond the pale and required extended analysis. But letting Trump fire half the department's workforce overnight and effectively shut down the agency that Congress created? That gets a rubber stamp with no explanation at all.

Sotomayor's Righteous Fury

Justice Sotomayor's 19-page dissent (joined by Justices Kagan and Jackson) is a masterpiece of righteous indignation. She methodically dismantles the majority's abandonment of constitutional principles:

This case arises out of the President's unilateral efforts to eliminate a Cabinet-level agency established by Congress nearly half a century ago: the Department of Education. As Congress mandated, the Department plays a vital role in this Nation's education system, safeguarding equal access to learning and channeling billions of dollars to schools and students across the country each year.

Only Congress has the power to abolish the Department.

She then delivers the key point:

When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary's duty to check that lawlessness, not expedite it.

But the conservative majority couldn't be bothered to address any of this. They just waved through Trump's power grab without explanation.

Writing for the Historical Record

Justice Sotomayor's dissent here follows the path that Justice Ketanji Brown Jackson has blazed recently: writing not just for her colleagues, but for the public and for history. As Jay Willis noted at Balls & Strikes, Justice Jackson has been remarkably willing to call out the Court's partisan hackery. In case after case, she's been pointing out that the Court has demonstrated enthusiasm for green lighting this president's legally dubious actions in an emergency posture."

Sotomayor appears to be joining this approach. Rather than maintaining polite judicial fiction, she's directly calling out the majority's willful blindness" and warning about the grave" threat to our Constitution's separation of powers. Jackson's dissents have become a running commentary on the Court's transformation from a judicial body into a partisan enabler of authoritarian rule. Now Sotomayor is adding her voice to this historical record. As Wills notes, they're writing for the public, assuring millions of Americans that they're not wrong to question the good faith of a Republican-controlled Court that keeps siding with a Republican president.

For as long as she remains stuck in the minority, it might also be the most important part of her job: If she cannot persuade her colleagues that the Constitution does not imbue Donald Trump with an inviolate right to ignore it, she can at least use her platform to show the public that the institution is captured, broken, and not to be taken seriously.

This approach has reportedly frustrated some of their colleagues, who seem to think there's still value in maintaining decorum among justices. But Jackson and (hopefully, now) Sotomayor understand something important: when the Court stops explaining itself, it stops being a court and becomes just another political institution.

Why Explanations Matter

As Vladeck wrote about the human trafficking case, the Court's refusal to explain itself creates chaos:

The more important point is that this dispute has happened only because the six (or five) justices who voted to stay some of Judge Murphy's earlier rulings didn't explain themselves. In that respect, the contretemps in D.V.D. can be directly traced to one of my biggest criticisms of the shadow docket-the justices' regular refusal, even when granting emergency relief, to explain why they've done so. Alas, I've been beating this drum for years. But it's hard to think of a more pointed or compelling example of what can happen when the Court doesn't write.

Well, now he's got a second example.

Without explanations, parties and lower courts are left to speculate about what the justices actually meant. That's particularly problematic when the disputes involve governmental policies affecting millions of people.

More fundamentally, principled explanations are what separate judicial power from raw political power. When the Court stops explaining itself, it stops being a court worthy of respect.

The Broader Assault On The Rule Of Law

This isn't just about immigration or education policy. It's about the fundamental principle that government officials must follow court orders until they're properly overturned. By repeatedly rewarding Trump's defiance of lower court rulings, the Supreme Court is teaching every future administration that court orders are optional if you have the right political connections.

Well, at least he's teaching Republican administrations that, as the Biden v. Nebraska case appears to make it clear, this doesn't apply to Democratic administrations.

The McMahon case is particularly egregious because, as Sotomayor details, the Trump administration openly admitted it was trying to shut down an agency that only Congress can abolish. They fired thousands of employees without any analysis of how this would affect the department's statutorily mandated functions. When asked during a congressional hearing whether they had conducted such an analysis, McMahon simply said No."

This is executive lawlessness, plain and simple. And the Supreme Court is actively enabling it.

What We're Losing

The Department of Education administers over $120 billion in federal student aid to over 13 million students. It enforces civil rights laws in schools. It provides funding for special education services for more than 7 million students with disabilities. It channels over $100 billion annually to public schools.

It is fundamental infrastructure to the American education system.

All of this is now at risk because six justices couldn't be bothered to write a few paragraphs explaining why the President can unilaterally dismantle Cabinet-level agencies.

Students with disabilities will lose services. Schools will lose funding. Civil rights protections will disappear. All so Trump can fulfill a campaign promise to close up the Department of Education" without the inconvenience of actually getting Congress to agree.

The Roberts Court's True Legacy

Each lawless decision like this makes it clearer that the Roberts Court's legacy will be the complete destruction of public faith in the judiciary. John Roberts spent years wringing his hands about declining trust in the Court, but he's presiding over its transformation into a partisan institution that serves power rather than law.

This isn't just about declining trust"-that's already happened. The question now is what comes next when courts stop being courts and become just another political institution competing for legitimacy.

The Court is teaching Americans that the rule of law only applies to those without political connections to the right people. Why should anyone respect judicial decisions when the justices themselves have abandoned any pretense of impartiality?

Justice Sotomayor's dissent ends with a warning that applies far beyond this case:

The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution's separation of powers is grave.

The conservative majority isn't naive. They know exactly what they're doing. They're systematically dismantling the constraints on executive power, one unexplained shadow docket ruling at a time.

And they're doing it without even having the decency to explain why.