4 days ago
The Supreme Court Owes the Country Explanations, Not Just Rulings
Federal judges are not elected by the public. Nor are they supposed to make decisions based on their ideological preferences. Our political system instead vests them with the power to decide whether the president, Congress and other lawmakers are enacting policies that are consistent with previous laws, court rulings and, above all, the Constitution.
For these reasons, the credibility of judges depends on their ability to offer public explanation for the legal basis of their decisions. When judges show their work, the public can assess it by the standards the judiciary sets for itself — reasoning grounded in law and judicial precedent. Without that, judges risk their legitimacy. Clear explanation is especially important for the Supreme Court, which sets national rules that lower courts must follow. When the court fails to make these rules clear, confusion can set in.
The current Supreme Court is creating precisely this problem by issuing many important rulings as brief, unsigned orders on its so-called emergency docket. On this docket (also known as the shadow docket), the votes among the nine justices are not public, and the majorities typically offer little explanation for their decisions. Yet the justices have used the emergency docket this year to hand down a series of rulings allowing President Trump to expand executive power and alter the structure of government.
In following this path, the justices are ducking one of their crucial responsibilities: making persuasive arguments with which we can all engage. This overuse of the emergency docket is a self-inflicted wound. It diminishes public confidence in government when that confidence is already low.
We recognize that the emergency docket is a necessary part of Supreme Court business. It allows the court to address urgent questions that cannot wait months or years to be adjudicated to the end in the lower courts and then fully briefed and argued at the Supreme Court.
For most of American history, a single justice ruled on emergency matters, sometimes after a hearing, with each of the nine justices having authority over a different region. After the court reinstituted the death penalty in 1976, all nine heard last-minute applications to delay executions. The practice of the full court hearing emergency cases became routine in the early 1980s, according to Stephen Vladeck, a Georgetown law professor who tracks the court in a weekly newsletter. Still, the death penalty was long the emergency docket's primary purpose. The administrations of George W. Bush and Barack Obama, combined, asked the Supreme Court for emergency relief only eight times in 16 years.
Mr. Trump's administration has been much more aggressive about seeking emergency relief for a worrisome reason: He has enacted many legally dubious policies that lower-court judges have blocked, on a strikingly bipartisan basis. His lawyers have then selectively rushed to the Supreme Court, asking the justices to overturn certain rulings and allow the policies to go into effect. In his first term, his administration applied for emergency relief 41 times. In his second term, the pace has been even faster. The Trump administration has applied 21 times since January. The math is jarring. Mr. Bush and Mr. Obama averaged one emergency request every two years; Mr. Trump averages nearly one a week.
The justices have been very friendly to these applications. After rejecting the Trump administration's first three filings this spring, the court has granted the last 18. Some of its decisions are legally defensible. Others may turn out to be temporary, with the justices ultimately judging Mr. Trump's policy to be illegal after they fully consider it. Yet the overuse of the emergency docket nonetheless has worrisome consequences. We see at least three specific ways in which the court's new fondness for speed and silence is damaging the American legal system.
The first problem is the lack of explanation, which leaves the public unable to assess the justices' reasoning and lower courts and policymakers uncertain about the full meaning of the rulings.
Take the decision this month allowing the Trump administration to fire many Department of Education employees. After taking office, Mr. Trump said he would like to close the agency immediately and signed an order with a section called 'Closing the Department of Education and Returning Authority to the States.' In response to lawsuits brought by states, school districts and unions, a district court blocked the order, finding that it 'effectively dismantled' the department.
The Trump administration appealed to the Supreme Court, making multiple arguments. John Sauer, Mr. Trump's solicitor general, conceded in his petition that the executive branch could not unilaterally abolish the department, which Congress created in 1979. But Mr. Sauer defended the order by saying that it directed closure to the 'maximum extent' permitted by law. He also argued that the plaintiffs lacked standing (meaning they did not have a legal basis to challenge the order) and that the lower court lacked jurisdiction (meaning it was not the right forum for the case).
The court sided with the Trump administration, offering no explanation. It did not say whether it agreed with Mr. Sauer's argument on the merits or his arguments about standing or jurisdiction. It did not illuminate what it would mean to close a cabinet agency to the maximum extent permissible without actually closing it. As a result, lower courts cannot know how to apply the ruling in other cases. Which firings and cuts are legal, and which are illegal? Should other plaintiffs file a new lawsuit? The court gave no clue. Uncertainties also loom over its emergency rulings on cases dealing with immigration, transgender troops and access to Social Security records.
A second problem is the perception of Supreme Court partisanship, which the emergency docket exacerbates. Since 2021, the approval rating for the court has fallen, and people's attitudes toward it have become more polarized, with many more Republicans than Democrats or independents expressing faith in it. As the court's Republican-appointed majority rules again and again in Mr. Trump's favor in emergency matters, the paucity of explanation contributes to a perception that the justices have a thumb on the scale for a Republican president.
It is also striking that the court seemed less willing to grant emergency relief to President Joe Biden than to Mr. Trump. In 2022, for example, the Biden administration petitioned the justices after a district court blocked the Education Department from carrying out Mr. Biden's student-debt forgiveness program. The justices declined to act, leaving his plan paused for half a year while they considered the case on its normal, slower docket. The justices also declined to take up his administration's broader complaints about universal injunctions — orders from a single lower-court judge blocking a policy nationwide, as happened with the debt-relief program.
After Mr. Trump took office, by contrast, the justices issued a ruling restricting those universal injunctions. Why was Trump's Education Department policy an emergency that required immediate relief but Biden's policy was not? Why did the court allow universal injunctions to block Mr. Biden's policies, only to restrict them after they blocked Mr. Trump's actions? Once more, the justices might have had reasons for making these distinctions but have not offered them. By failing to do so, the justices breed doubt.
Another recent emergency case highlighted this partisanship problem in a subtler way. In May the court expanded the president's authority to remove officials at independent agencies, such as the National Labor Relations Board. This time, the court gave a truncated explanation, saying the president's constitutional powers include the authority to fire agency heads without cause. But the court made a strange exception. It said the president still must have cause to fire a member of the board of the Federal Reserve. In defense, the court offered one vague sentence: 'The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.'
The lack of meaningful argument arouses suspicion that the distinction has little legal basis and instead reflects the fact that many Republicans favor a well-functioning Fed while being suspicious of other regulatory agencies. Because of the court's ruling, the president can now dismiss many agency leaders at will; on Wednesday the conservative majority issued yet another emergency order that allows Mr. Trump to fire the Democratic members of the Consumer Product Safety Commission. These rulings are a sharp break from a previous Supreme Court decision that stood for 90 years, and they end the independence that some agencies had since Congress created them during the New Deal. The court is using the emergency docket to create a more powerful presidency.
The third problem is that the Supreme Court is using this docket to make itself more powerful, too, deciding many of the country's most pressing political questions in real time. This is a power grab, in which the justices reduce the role of lower courts, where judges are more evenly divided between Republican and Democratic appointees than the justices are.
Last month Justice Brett Kavanaugh invited yet more applications for emergency relief. He wrote that the Supreme Court, not the lower courts, should decide whether a major law or executive action takes effect in the months or years before a final judgment. There are benefits to national uniformity, which Mr. Kavanaugh said is his goal. But the six Republican appointees on the nine-member court sometimes seem to favor a version of uniformity that reflects their personal policy preferences.
Since Mr. Trump first took office in 2017, the Supreme Court has restrained him in important ways. It blocked major policies in his first term, such as his attempt to add a citizenship question to the census. It showed no patience for his ludicrous claims of election fraud in 2020. This year it issued an emergency order prohibiting the transfer of additional prisoners to a brutal Salvadoran prison. Anybody who dismisses the court as a mere extension of Mr. Trump is being unfair.
Nonetheless, the court has been too deferential to him. It sometimes seemed willfully blind to the ways in which he is different from every other modern president, of either party, in arrogating power and breaking with longstanding legal and ethical constraints on using it. Last summer the justices gave him and future presidents immunity from criminal prosecution for most of their acts in office, a free pass that set aside the principle that no one is above the law. By using the emergency docket to side with him so often, the court is changing its own job and the presidency before our eyes when the country needs the Supreme Court to be a force of stability.
A better approach would be for the court to adhere to stricter standards for deciding which cases are true emergencies. Even in these cases, the justices should hold arguments when possible and always publicly release their votes. They should take the time to explain themselves clearly enough to guide the lower courts, give the rest of us a rationale and distinguish judicial power from political power.
Most of all, the court should think about how its work can bolster the separation of powers to assure the future of American democracy. That is its ultimate responsibility.
Source photograph by artisteer, via Getty Images.
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