Justice Barrett’s Tone-Deaf Defense Of The Shadow Docket Comes As Federal Judges Revolt Against Supreme Court’s “Mystical” Orders

Legal Issues

from the you're-getting-it-all-backwards dept

When 47 out of 65 federal judges tell The New York Times that the Supreme Court is mishandling its emergency docket and creating a “judicial crisis,” you might think a Supreme Court Justice would show some humility about the criticism. Instead, Justice Amy Coney Barrett decided to go on Fox News Sunday to dismiss the concerns entirely, arguing that the Court’s stream of unexplained emergency orders is no big deal because they’re just “preliminary” decisions.

The optics would be shocking in the past—and should be shocking today, even recognizing how much the window on partisan politicking has changed over the last few years. Supreme Court Justices traditionally maintain a careful distance from partisan media, particularly when defending controversial Court decisions. But here’s Barrett, just days into the new Court term, sitting down with Fox News—a network that has openly supported Trump and his agenda—to dismiss legitimate concerns from dozens of federal judges while simultaneously promoting her book. It’s hard to imagine a more tone-deaf response to a judicial crisis, or one that more thoroughly undermines any pretense of judicial independence.

But Barrett’s substantive defense of the shadow docket is even more problematic than the venue she chose to make it.

The Times survey revealed the stunning degree to which federal judges—including those nominated by both Democratic and Republican presidents—are willing to break with judicial norms to criticize the Supreme Court publicly.

More than three dozen federal judges have told The New York Times that the Supreme Court’s flurry of brief, opaque emergency orders in cases related to the Trump administration have left them confused about how to proceed in those matters and are hurting the judiciary’s image with the public.

At issue are the quick-turn orders the Supreme Court has issued dictating whether Trump administration policies should be left in place while they are litigated through the lower courts. That emergency docket, a growing part of the Supreme Court’s work in recent years, has taken on greater importance amid the flood of litigation challenging President Trump’s efforts to expand executive power.

In interviews, federal judges called the Court’s emergency orders “mystical,” “overly blunt,” “incredibly demoralizing” and “troubling” and “a slap in the face to the district courts.” One judge compared their district’s current relationship with the Supreme Court to “a war zone.” Another said the courts were in the midst of a “judicial crisis.”

These aren’t partisan complaints from Democratic appointees. Of the 65 judges who responded, 28 were nominated by Republican presidents, including 10 by Trump himself. Nearly half of the Republican-nominated judges said they believed the orders had harmed the judiciary’s standing in the public eye.

The judges’ frustration is understandable. Time and again, district court judges have carefully considered Trump administration policies, held hearings, reviewed evidence, and issued reasoned decisions blocking overreaches—only to have the Supreme Court reverse them with a few sentences and zero explanation. As one judge told the Times, the Court was expecting district court colleagues “to read their minds about what their view of the law is.”

Barrett’s response to this crisis? Essentially, “nothing to see here, folks.”

When Fox News host Shannon Bream asked about Justice Sotomayor’s criticism that the Court’s “appetite to circumvent the ordinary appellate process and weigh in on important issues has grown exponentially” while “its interest in explaining itself, unfortunately, has not,” Barrett offered this dismissive response:

It’s a relatively new phenomenon… or at least the amount of activity on it is relatively new. You know, these are cases that are preliminary and so they are not cases in which the court has had full briefing and made a final judgment… Deciding a merits case is a painstaking process. It’s slow. It takes a lot of work. And when we write an opinion, it reflects our final judgment. On the interim docket, these preliminary decisions that we make, it’s not just about the merits, whether a case is right or wrong. We could account for other factors as well. And if we wrote a long opinion, it might give the impression that we have finally resolved the issue. And in none of these cases have we finally resolved the issue.

This argument fundamentally misses the point—or deliberately obscures it. If these are truly preliminary decisions that don’t resolve the underlying issues, then the Court should be focused on maintaining the status quo while the cases work their way through the system. That’s how emergency relief is supposed to work: you preserve the existing state of affairs until there’s time for full consideration.

The entire point of preliminary relief is to prevent irreversible harm while the legal system does its job. When a lower court issues a preliminary injunction blocking a government policy, it’s precisely because allowing that policy to continue would cause harm that can’t be undone later. You don’t let potentially illegal deportations proceed while you figure out if they’re legal—by the time you decide, people have already been wrongfully removed from the country. This is basic legal procedure that every first-year law student learns.

But Barrett’s defense completely inverts this logic. She’s essentially arguing that because these aren’t final decisions, the Court doesn’t need to worry about letting potentially illegal policies proceed unchecked, no matter how much damage is done in the interim.

The Supreme Court has, instead, systematically sided with Trump’s agenda in nearly every emergency application, allowing his administration to implement sweeping policy changes while litigation is pending.

Take, for example, the Court’s decision to allow Trump to fire FTC Commissioner Rebecca Kelly Slaughter, despite nearly 90 years of settled precedent establishing that independent agency commissioners can only be removed “for cause.” The 1935 Supreme Court decision in Humphrey’s Executor v. United States made clear that such commissioners serve fixed terms and cannot be fired at the president’s whim—it’s one of the foundational principles of administrative law.

But rather than preserve the status quo while the legal questions were properly litigated, the Court’s conservative majority allowed the firing to proceed via shadow docket order. They effectively overturned Humphrey’s Executor without admitting they were doing so, letting Trump remove a commissioner for purely political reasons while maintaining the fiction that they hadn’t actually decided anything about presidential removal powers.

If Barrett’s logic were correct—that these emergency orders don’t resolve underlying legal issues—then the Court should have kept Commissioner Slaughter in place until they could fully consider whether the firing violated established precedent. Instead, they allowed what appears to be an illegal removal to proceed, causing immediate and irreversible harm to the independence of federal agencies.

As a report at Newsweek noted, it’s incredible just how sweeping the changes are that the Supreme Court’s conservative majority has blessed mostly without explanation via the shadow docket:

The high court, which has a 6-3 conservative majority, has given a series of green lights to the White House without full hearings or any explanation of its reasoning, as is typical on the court’s emergency docket, also known as the shadow or interim docket. Those decisions include clearing the way for stripping legal protections from immigrants, keeping nearly $5 billion in foreign aid frozen and ousting transgender members of the military.

Each of these decisions represents a deliberate choice to let potentially illegal policies cause real harm to real people rather than preserve the status quo. Transgender service members have been kicked out of the military. Immigrants have been subjected to racial profiling. Government workers have lost their jobs. Billions in congressionally approved aid has been withheld. All while the cases are supposedly still being “properly” litigated.

Whatever happened to cautious judicial restraint? This is active judicial intervention on behalf of the Trump administration, wrapped in the pretense of procedural modesty.

Barrett’s claim that writing explanations might “give the impression that we have finally resolved the issue” is particularly galling. The current approach—issuing cryptic orders that lower courts are somehow supposed to divine meaning from—has created far more confusion about what the Court actually thinks. As the Times noted, the Supreme Court has become “more insistent that its emergency orders are supposed to serve as guideposts for the lower courts” while simultaneously refusing to explain what those guideposts actually mean.

The real-world consequences of this approach were on full display when Justices Gorsuch and Kavanaugh publicly dressed down respected conservative Judge William Young, an 85-year-old Reagan appointee with more than 40 years on the bench, for supposedly failing to correctly apply an unexplained emergency ruling. Judge Young issued a rare apology from the bench, expressing bewilderment with the Court’s opacity: “Never, before this admonition, has any judge in any higher court ever thought to suggest that this court had defied the precedent of a higher court — that was never my intention.”

Several judges who responded to the Times survey singled out the treatment of Judge Young as “a particularly demoralizing breach of decorum.”

That view resonated with one of their retired colleagues, Jeremy Fogel, who was a federal judge for 20 years. Judge Young, he said, “has been at it for so long. He’s done the toughest cases, and he’s done them well. For a guy like that to get bench-slapped for not reading the tea leaves properly? That’s just not fair.”

Justice Gorsuch’s opinion could be read as “promoting a disrespect for the judiciary,” one that echoed Mr. Trump’s rhetorical attacks on judges, said Nancy Gertner, a retired judge who teaches at Harvard Law School. Both, she said, “undermine the bench and promote an atmosphere of disrespect.”

Barrett’s breezy dismissal of these concerns during a Fox News interview—while hawking her book, no less—suggests a Supreme Court Justice completely out of touch with the institutional damage the Court is inflicting on itself. When federal judges are willing to break decades of tradition to publicly criticize the Supreme Court, when they’re describing their relationship with the highest court as a “war zone,” when they’re warning of a “judicial crisis,” maybe the appropriate response isn’t to go on cable TV and tell everyone to chill out.

But then again, this is the same Supreme Court that has spent the past few years systematically undermining its own legitimacy through a combination of ethical scandals, partisan decision-making, and now a shadow docket that operates more like an explanation-free rubber stamp for whatever the Trump administration wants to do.

Barrett’s Fox News appearance is just the latest example of this kind of disrespect—not for any individual judge, but for the entire federal judiciary that’s trying to maintain some semblance of reasoned decision-making while the Supreme Court issues “mystical” orders from on high.

When a federal judge describes their relationship with the Supreme Court as a “war zone,” that’s not hyperbole—it’s a constitutional crisis. The federal judiciary is supposed to operate as a coherent system, with lower courts implementing higher court guidance and the Supreme Court providing reasoned leadership. Instead, we have a Supreme Court that issues cryptic orders, expects blind obedience, and sends justices on Fox News to dismiss legitimate concerns while hawking books.

The 47 federal judges who told the Times that the Supreme Court is mishandling its emergency docket aren’t just complaining about workload or procedure. They’re warning that the entire judicial system is breaking down when the nation’s highest court operates without explanation, consistency, or respect for the very principles it’s supposed to uphold.

Barrett’s breezy Fox News appearance is a symptom of a Supreme Court that has lost sight of its role in our constitutional system. When federal judges are willing to risk their careers to publicly criticize the Court, when they describe their working relationship as a “war zone,” when they warn of a “judicial crisis,” maybe the problem isn’t that everyone else is overreacting.

Maybe the problem is that the Supreme Court has forgotten that legitimacy isn’t automatic—it has to be earned, every day, through reasoned decisions and institutional humility. And you can’t earn it by going on cable TV to tell everyone that your unexplained, precedent-defying orders are actually no big deal.

Filed Under: amy coney barrett, donald trump, emergency docket, interim docket, judiciary, precedent, shadow docket, status quo, supreme court, william young