The Supreme Court typically takes its time when deciding cases, but the Left’s flurry of lawsuits against the Trump administration has filled up the high court’s emergency docket and forced the justices to issue consequential emergency orders, frustrating some of the liberal justices.
Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson have expressed increasing displeasure over the majority’s decisions in response to applications on the emergency docket, which have handed President Donald Trump and his administration a series of interim wins.
The high court’s Wednesday order allowing the Trump administration to fire three Democrat-appointed members of the Consumer Product Safety Commission was the latest instance in which the increasing use of the emergency docket has led to blistering dissents.
Liberal justices have issued scathing dissents in emergency orders
With the 6-3 decision allowing the CPSC members to be removed as litigation continues, Kagan wrote a three-page dissent, joined by Sotomayor and Jackson, in which she claimed the majority was using the “emergency docket to destroy the independence of an independent agency, as established by Congress.”
“The majority has acted on the emergency docket—with ‘little time, scant briefing, and no
argument’—to override Congress’s decisions about how to structure administrative agencies so that they can perform their prescribed duties,” Kagan wrote in the dissent on Wednesday.
Liberal justices have accused the majority of abusing the emergency docket as Trump has notched interim wins on his firings of independent agency heads and executive department layoffs, among other issues.
“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,” Sotomayor wrote in her dissent of an order allowing the Trump administration to proceed with mass layoffs at the Education Department. “Unable to join in this misuse of our emergency docket, I respectfully dissent.”
In a dissent to an order allowing Trump to fire Gwynne Wilcox of the National Labor Relations Board and Cathy Harris of the Merit Systems Protection Board, Kagan argued the 6-3 majority had gone against the traditional use of the emergency docket by overruling precedent in an emergency order.
“Our emergency docket, while fit for some things, should not be used to overrule or revise existing law,” Kagan wrote in a dissent joined by Sotomayor and Jackson. “We consider emergency applications ‘on a short fuse without benefit of full briefing and oral argument’; and we resolve them without fully (or at all) stating our reasons.”
“It is one thing to grant relief in that way when doing so vindicates established legal rights, which somehow the courts below have disregarded,” Kagan added. “It is a wholly different thing to skip the usual appellate process when issuing an order that itself changes the law.”
The liberal justices and left-wing commentators have accused the conservative majority of enabling the Trump administration’s sweeping actions. Conservative commentators have pointed to the significant uptick of lower courts blocking Trump’s actions, which they claim have unlawfully prevented the president from exercising his executive authority.
“Why is the emergency docket exploding so much?” Carrie Severino, the president of the conservative advocacy group Judicial Crisis Network, told the Washington Examiner. “Is it because there are extraordinary actions being taken by administrative agencies or by the courts that are requiring the Supreme Court to step in more than they ever have before or the court overstepping and reaching out to decide more things than it used to? That’s the debate that we’re starting to see between the two different sides of the court.”
The emergency docket is not new, but its usage has increased
The emergency docket is not new for the Supreme Court, but its usage has increased in the months since Trump returned to office, as lower courts have issued an unprecedented number of injunctions blocking his actions.
While the Left’s complaints about the emergency docket have largely centered on procedural concerns over its frequent use, Severino believes the criticism of the so-called shadow docket is just another way for progressives to vent their frustrations with the high court’s judicial philosophy.
“A lot of the complaints about the emergency docket are coming from people frustrated with the originalist majority on the court more generally and, as a result, are trying to find ways to attack and delegitimize the court,” she said. “Even the idea of calling it the shadow docket and trying to make that into a term that sounds somehow improper or underhanded, which it’s not.”
“The emergency docket isn’t new,” Severino added. “Yes, the volume is more than it was, but then lower courts have also been far more active in blocking this administration’s actions than ever before.”
Severino also believes the liberal justices’ frustration is more about the outcome of petitions handled through the emergency docket rather than the increased volume of them.
“It’s hard to take out the political context from the liberals’ analysis,” Severino said. “Are they really concerned about the emergency docket, per se, or is this a concern about they don’t like the results they’re seeing in cases?. Some of this is just the reality that when you’re the minority on the court, you’re not going to like the results of a lot of the cases.”
Continued emergency requests could force Supreme Court to take cases more quickly
The Supreme Court has had different cases dealing with similar matters in recent months on its emergency docket, which may add to the justices’ frustrations.
The justices’ Wednesday order allowing the three CPSC members’ firings, for example, was similar to their May order allowing Democrat-appointed NLRB and MSPB members to be axed. The unsigned majority order last week referred to the high court’s previous order.
“The same is true on the facts presented here, where the Consumer Product Safety Commission exercises executive power in a similar manner as the NLRB, and the case does not otherwise differ from Wilcox in any pertinent respect,” the majority said in the Wednesday order.
Lower courts’ attempts to continue ruling in ways that defy the Supreme Court’s previous rulings, even those stemming from the emergency docket, via “loopholes or cute workarounds” are likely “very frustrating” for the justices, said Severino, who noted that “it’s an attempt” by lower courts “to end-run the normal rule of law structure.”
“We’ve seen a lot of cases recently where the Supreme Court has had to go back to correct lower courts that are trying to find loopholes to effectively deny Supreme Court precedent rather than just follow it,” Severino said. “And that also increases the need for use of the emergency docket, because lower courts are not following precedent.”
The avalanche of requests on the emergency docket could also be shifting the Supreme Court’s thinking about taking up cases in Trump’s second term, as lawsuits against the administration continue to pile up in lower courts. With Wednesday’s order, Justice Brett Kavanaugh said he would have taken up the case for full merit arguments before the lower courts had finished litigation.
“When the question is whether to narrow or overrule one of this Court’s precedents rather than how to resolve an open or disputed question of federal law, further percolation in the lower courts is not particularly useful because lower courts cannot alter or overrule this Court’s precedents,” Kavanaugh wrote. “In that situation, the downsides of delay in definitively resolving the status of the precedent sometimes tend to outweigh the benefits of further lower-court consideration.”
The Supreme Court has already slapped down lower courts’ usage of sweeping injunctions and appears to be reconsidering how it deals with lower court orders as the number of petitions on the emergency docket builds up. Severino believes the continued actions of lower-court judges have chipped away at some of the benefit of the doubt the Supreme Court traditionally gives them.
SUPREME COURT ALLOWS TRUMP TO FIRE THREE DEM-APPOINTED CPSC MEMBERS
“You see a progression of the way the Supreme Court seems to be looking at them over the past few years,” Severino said. “At the outset of Trump’s second term, they seemed a bit more inclined to give lower courts the benefit of the doubt. ‘Let’s let this work through the system.’”
“But then you just started to see so many cases in which it’s clear that the courts are abusing the Supreme Court giving them the benefit of the doubt,” she added. “So now the high court has to say, ‘Read my lips,’ and spell out exactly what they need to do in terms that even activist judges can’t contort.”