Last week, the Supreme Court ended a term unlike any other. The Roberts Court, with its 6-3 majority of Republican appointees, continued to issue partisan opinions that pleased the wealthy interests that fund the conservative legal movement while abetting the new Trump administration on its lawless rampage against immigrants, federal agencies, Congress, the courts, and natural born citizens. With the decisions now laid out, a clear pattern emerges: The court is increasingly solicitous of the political coalition that created its rightwing majority—as well as the court’s own power over the rest of the government.
“No right is safe in the new legal regime the Court creates.”
Once President Donald Trump took office on January 20, the justices’ work split along two parallel tracks. The first, called the merits docket, encompasses the normal business of the court—which for this court is doing the work of the billionaires and industry titans whose largess helped the conservative majority win its seats. The second track, the emergency docket, is where the court acts as the final mediator of Donald Trump’s unlawful power grabs—power clashes that the Republican-appointed justices have repeatedly called in Trump’s favor. This docket is also derisively called the shadow docket, because the justices not only make these decisions quickly, but with little or no explanation. Thus, this is the executive power track.
These parallel tracks reflect the two sides of the Republican Party’s coalition: The traditional constituents of big business and conservative Christians on one side, and Trump’s newer MAGA movement on the other. On the merits docket, the Roberts Court continues at breakneck speed to dismantle the administrative agencies and laws that regulate industry while abetting the project of Christian nationalism. On the shadow docket, the GOP appointees oblige Trump’s power grabs.
The two tracks are not entirely separate, but mutually reinforcing. Both share a disdain for Congress’ role in our system of government while prioritizing the prerogatives of the president, wealthy interests, and rightwing Christian interest groups. And so these parallel tracks have, in recent months, converged.
They also mutually reinforce the awkward political marriage that created this Supreme Court, between the powerful business interests and the religious extremists who, in joining up with Trump’s MAGA movement, forged an alliance that rewarded and kept both camps happy, facilitating their continued cooperation. Again and again, on both tracks, it is democracy that loses out to opportunism as the court seeks to hand party favors to all but the people who need their protection.
Michael Podhorzer, the former political guru for the AFL-CIO, has described how the Roberts Court often supplants “democratic legal principles” with what he terms rule-by-fiat, an “outcome-driven jurisprudence that disingenuously changes the law to accomplish outcomes that favor specific interests.” As Podhorzer tells it, “once cases reach the Rule-by-Fiat system, outcomes follow power relations rather than legal principles.” The best way to understand the court’s actions this year is through this Rule-by-Fiat framework.
Consider the justices’ track record in the last weeks of its term. According to Stanford political scientist Adam Bonica, between May 1 and June 23, lower courts ruled against Trump 94 percent of the time. In that same window, the Supreme Court ruled for the administration 94 percent of the time.
The shadow docket allows the justices to order change simply because they say so.
Traditionally, the Supreme Court begins each term in the first week of October and wraps up by the end of June, when multiple justices wing off to Europe on plum teaching junkets, cruise on billionaires’ yachts, or fly private jets to Alaska fishing expeditions—the spoils of their all-powerful position in government. Cases on this merits docket, many of which are handed out in the Supreme Court’s final weeks of term, have marinated in the lower courts, where district courts have fleshed out the facts and appellate courts have rendered their analysis—though those lower courts are increasingly shaped by the same special interests that indulge the justices in their fancy vacations and other perks. The justices read rounds of briefs, receive input from interested parties, hear oral arguments, and then make a final decision. These cases are generally the biggest of the term, and the focus of press reports.
But this year, the court’s regular business was overshadowed by its shadow docket. Throughout the year, the justices consider emergency applications—requests for the highest court to intervene before a case has worked its way up through lower courts and is ready for a full merits decision by the justices. In the past 10 years, this emergency or shadow docket has grown in both size and importance. Increasingly, the Republican-appointed majority is using these emergency appeals to render important legal decisions and intervene on behalf of partisan allies. They do this in the proverbial shadows, skipping over the normal deliberative process and often sharing no justification for their actions. Rather than release considered opinions, the shadow docket allows the justices to order change simply because they say so.
Since President Donald Trump’s swearing in five months ago, the shadow docket has exploded with the most vital cases on the very basic questions of liberty and the rule of law: Can the president deport people without due process? Can he disregard Congress’ spending authority? Can he gut federal agencies by executive order? Can district court judges halt Trump’s policies on a nationwide basis? Repeatedly, the court has used this shadow docket to carve rights out of the Constitution with a few days deliberation, no oral argument, and, in some cases, not a word of explanation.
It is through the shadow docket that the justices have greenlit many of Trump’s power grabs. When the administration flew 238 Venezuelan immigrants to El Salvador’s notorious Terrorism Confinement Center just hours after invoking the Alien Enemies Act, a federal judge in Washington, D.C. ordered the administration to halt AEA deportations for 14 days. But the Supreme Court intervened on Trump’s behalf, ordering that potential deportees could only contest the government’s plans by lodging habeas corpus petitions in the court district where they were confined. No justice signed their name to the April opinion, but it was clear from Justice Sonia Sotomayor’s dissent, which was joined by the other two Democratic appointees and Justice Amy Coney Barrett, which five Republican-appointed justices were behind it. Sotomayor called out the majority for using the shadow docket to decide new and novel legal questions. “There is every reason to question the majority’s hurried conclusion that habeas relief supplies the exclusive means to challenge removal under the Alien Enemies Act,” she wrote. “At the very least, the question is a thorny one, and this emergency application was not the place to resolve it.”
In her own dissent, Justice Ketanji Brown Jackson was more blunt: “With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.”
Days later, the court tempered a district court judge’s order to return Kilmar Abrego Garcia, the man mistakenly sent to CECOT. The Trump administration would use the Republican majority’s milder language to refuse to bring him home for months. Then, in a June shadow docket ruling that applied not to one man but to many, the court allowed Trump to cancel humanitarian parole for hundreds of thousands of immigrants, ending their legal right to stay in the country and injecting chaos and danger into the lives of half a million people without a word of explanation.
In June, the Supreme Court issued its most worrying immigration decision from the shadow docket yet when the GOP appointees greenlit an administration policy of sending non-citizens to dangerous, war-torn countries without an opportunity to challenge their deportation—a likely violation of US and international law, not to mention constitutional guarantees of due process. In a dissent joined by her Democratic colleagues, Sotomayor warned that the majority’s unsigned, unexplained order “expos[es] thousands to the risk of torture or death.”
As the president tried to manifest a strongman-style government, the Supreme Court rushed to his aid.
The Republican-appointed majority has also had Trump’s back in other lawless pursuits. In May, they reinstated Trump’s ban on transgender service members in the military. In early June, they sided with DOGE when it authorized Elon Musk’s minions to access millions of Americans’ Social Security data, possibly in breach of the 1974 Privacy Act. “Once again, this Court dons its emergency-responder gear, rushes to the scene, and uses its equitable power to fan the flames rather than extinguish them,” Jackson wrote in a dissent joined by Sotomayor. The emergency, according to the GOP majority, was not whether DOGE staffers can legally access the personal data of millions of Americans or what might happen to it, but that the Trump administration might have to wait out the litigation to get its hands on it. The same day, the GOP appointees sided with the administration in a case over access to DOGE records, setting back the public’s ability to learn what the Trump administration is so urgently doing.
In the opening months of Trump’s second term, as the president tried to manifest a strongman-style government, the Supreme Court rushed to his aid, enabling him under the guise of the unitary executive theory, an expansive doctrine of executive power. Perhaps the justices’ embrace of the theory is heartfelt, perhaps it is utilitarian, likely it is both. But one decision particularly showcases how the conservative majority used the shadow docket to both empower the president at the expense of Congress and enact the agenda of their industry backers against workers. How convenient that it all came in one case.
Shortly after taking office, Trump fired Gwynne Wilcox of the National Labor Relations Board and Cathy Harris of the Merit Systems Protection Board, which protects civil servants. Under federal law backed up by Supreme Court precedent, neither could be removed without cause. But Trump dismissed them anyway, betting that the Republican justices would take his side. He was right. In a brief, unsigned, shadow docket opinion, the Republican appointees effectively toppled a 90-year precedent that allowed Congress to create commissions with independent leadership. The opinion expanded the president’s powers over agencies that were supposed to be immune from partisan gamesmanship. It was a gift not only to Trump, but to the businesses that wish to neuter federal regulators that oversee unionization and labor disputes, and that regulate financial markets and big business—the agencies that sprung from the New Deal to reign in the excesses that led to the Great Depression. For the justices, this case presented a chance to help Trump and their big business backers: win-win. For civil servants, American workers, American consumers, and Congress’ power to enact its agenda, it was a big loss.
“Our emergency docket, while fit for some things, should not be used to overrule or revise existing law,” Justice Elena Kagan chided in dissent. “The majority’s order granting the President’s request for a stay is nothing short of extraordinary.” But the extraordinary is now ordinary.
Finally, the biggest case of the term also came from the shadow docket. On January 20, Trump signed an executive order purporting to carve the children of undocumented people and visa holders out of the constitutional guarantee of birthright citizenship. It was so blatantly illegal that Trump has lost in every court to consider the issue, all of which issued injunctions to halt the policy nationwide. So the administration turned to the Supreme Court for reprieve, asking their allies in robes to stop all nationwide or universal injunctions on the grounds that they are an inappropriate use of judicial power. Last week, the six GOP appointees agreed.
After again and again bailing Trump out when district courts halted his policies, the majority issued a get-out-of-jail free card: It will now be difficult for courts to protect everyone from Trump’s lawless actions. Those lower courts, ruling almost uniformly against Trump’s lawless actions, are now hamstrung. If you don’t have a lawyer, the ability to join a class action, or live in a state challenging a Trump policy, your rights will give way to Trump’s whims. “No right is safe in the new legal regime the Court creates,” Sotomayor warned. “The Court’s decision is nothing less than an open invitation for the Government to bypass the Constitution.”
The justices delivered wins for the traditional Republican coalition of big business and extremist Christian groups.
“By striking down nationwide injunctions, the Court furthered its determination to free up this President to exercise virtually unlimited power,” writes civil rights lawyer Sherrilyn Ifill. “More than a unitary executive, this conservative Court imagines an unfettered executive.”
And so on the last day of the term, the shadow docket created a new legal realm. It’s possible that through class actions and state litigation courts can limit the decision’s harms. But we no longer live in a country where rights are universally protected.
With all the momentous law made—and broken—on the shadow docket, the court’s merits decisions received less attention. But in its course of regular rulings, the justices could be counted on to deliver wins for the traditional Republican coalition of big business and extremist Christian groups. Since 2020, the court’s six-justice GOP-majority has taken every opportunity to advance an agenda that aligns with the Republican coalition, and it is not slowing down. This term, winners included the fossil fuel industry, corporations seeking to dodge regulation, religious parents, anti-abortion advocates, and patriarchy. The losers include the environment, civil rights, people on Medicaid, women, transgender minors, other LGBT children, public education, people with disabilities, and Planned Parenthood.
In one case, the court’s GOP appointees and Kagan allowed a vaping company to sue the Food and Drug Administration in the Fifth Circuit, known for its rightwing attacks on agency regulation, rather than the DC Circuit or the circuit where the plaintiff is based, as stipulated by Congress. The result is that the Supreme Court discarded Congress’ will and created a loophole in federal law whereby tobacco industry litigants can pick their favorite judges when challenging certain FDA actions. Check off a big win for the tobacco industry.
The fossil fuel industry scored big as well, when the justices granted them standing to sue over California’s car emission standards, reasoning that oil companies’ profits will be harmed by the downstream effects. It’s hard not to see the decision as a favor to the fossil fuel industry and its grandees, including the Koch brothers, who helped pay for the Federalist Society and related entities that have nurtured and elevated members of the Supreme Court. In June, days before the majority slammed the courthouse doors to individuals seeking to vindicate their rights in a case over Medicaid, they opened those same doors to the fossil fuel interests that helped fund the justices’ rise.
Justice Jackson didn’t let this unsavory favoritism go unmentioned. “This case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens,” Jackson wrote in a dissent. She didn’t go so far as to outright claim that her colleagues were intentionally privileging “plaintiffs whose claims are backed by the Chamber of Commerce” over “those who seek to vindicate their rights to fair housing, desegregated schools, or privacy”—but she came close, writing that the decision “will do little to dissuade” anyone of the notion.
The GOP-appointed justices made a hash of federal regulators’ enforcement powers by allowing parties to challenge certain regulations in district court while they are being enforced—despite a federal law, the Hobbes Act, to the contrary. The case was a technical dispute over enforcement of a telecommunications law, but the bottom line is to bring chaos to the enforcement of federal regulations, to encourage regulated entities to flout the rules, and to open agencies to endless litigation—ushering in uncertainty and volatility. Who wins? Industries, corporations, and individuals who don’t want to follow the rules. The case follows recent decisions that make it easier for industries to defeat regulations Americans depend upon for a safe and healthy life. Once again, Congress’ will and law were nuisances to be disposed of.
“The Court will do whatever it wants, whenever it wants.”
While the court’s corporate backers had an excellent term, the far-right Christians in the GOP firmament made out just as well in their effort to subject the entire country to their patriarchal religious views. In a devastating case for transgender children, the court upheld a Tennessee ban on gender-affirming care for minors, opening the door to dozens of other state health care bans that similarly threaten the lives of transgender children. The decision cuts transgender kids out of the equal treatment protections of the 14th Amendment and disregards the wishes of parents seeking medical care for their children.
A week later, the Republican majority handed down a decision that threatens to upend public school classrooms by allowing religious parents to opt their kids out of lessons that violate their religious views. The case arose out of a Maryland county that allowed parents to opt their kids out of reading books with LBGT subjects, but that reversed course when the op-out proved impossible to manage. Now, the 6-3 majority has imposed opt-outs on every public school in the country: if a parent says a lesson violates their religious beliefs, the school has to pull the kid out of the classroom.
This is, of course, unworkable. Instead of constantly yanking a segment of their students out of classrooms, schools will remove the LGBT topics from the bookshelves, along with anything else the most vocal religious parents object to. As religious objections get bolder, teachers will likely self-censor. LGBT children, or those from LGBT families, will see representations of their lives banished. The court has ushered in a world where parents can no longer make decisions about their trans child’s medical care, but religious parents can dictate what every kid in the school learns. It’s parental rights, for the right parents.
“The damage to America’s public education system will be profound,” Sotomayor wrote in dissent. “In effect, then, the majority’s new rule will hand a subset of parents a veto power over countless curricular and administrative decisions. Yet that authority has long been left to democratically elected state and local decisionmakers, not individual parents and courts.” When it comes to transgender kids, the court lets state legislatures target a vulnerable minority. But when it comes to school curricula, the democratic process isn’t good enough. Rather than use its power to protect a minority’s rights against a hostile majority, the court throws them to the wolves, then invokes its protective powers to impose religious views on everyone else. It certainly seems like some litigants get favorable treatment while others do not.
The court also targeted poor people on Medicaid, particularly women, by allowing states to halt Medicaid payments to Planned Parenthood and any other disfavored providers. This is not only a blow to women’s healthcare, most certainly with deadly consequences, but the GOP majority also used the case to weaken a Reconstruction Era law that allows people to sue to vindicate their rights. For the scorekeepers: fossil fuels can sue over indirect financial losses, but the courthouse door is shut to individuals like Medicaid recipients seeking to protect their rights.
“I think the most telling single opinion from the entire term is Justice Kavanaugh’s concurrence in the birthright citizenship ruling—which, in my view, can be fairly read to stand for the proposition that the Court will do whatever it wants, whenever it wants,” Georgetown Law professor Steve Vladeck wrote on Tuesday. “And I think that principle is fairly reflected in most of the Court’s big decisions from the term—including almost all of the headline-generating rulings respecting emergency applications.”
This Supreme Court term delivered momentous cases that will pervert our system of checks and balances while furthering the GOP projects of dismantling public education, workers’ rights, and medical care. It’s decisions will submit hundreds of thousands of immigrants to unspeakable harm. A president with fascistic ambitious is significantly more powerful than he was when he took office five months ago. The court didn’t have to do any of this. It wanted to.
This post has been syndicated from Mother Jones, where it was published under this address.