The Supreme Court Majority Is Functioning as a Political Arm of Trump

The Republican-appointed majority of the Supreme Court is playing a shell game with the American people.

In the guise of making procedural decisions on cases — by staying injunctions or temporary restraining orders issued by lower courts against Trump administration actions – the Court majority has been, as a practical matter, making substantive decisions on the merits itself with far-reaching consequences.

Since the Emergency Docket, also known as the Shadow Docket, is being used, the Court majority is making these important decisions without receiving written merits briefs, without hearing oral argument and without issuing written substantive opinions.

Thus, the Court majority is making consequential decisions without explaining them to the American people or to the lower court judges whose actions they are overturning.

This is a serious breach of the Court’s responsibility to the public, especially since its use of this Docket has been overwhelmingly to support Trump. While lower court judges are repeatedly ruling against the Trump administration, finding that its actions ignore federal laws and the Constitution, the Court majority is supporting the administration’s efforts in a manner that delays or prevents basic accountability.

The Republican-appointed Court majority, in essence, is actively facilitating Trump’s campaign to rapidly move our democracy to an autocracy. Trump is seizing more powers for the executive on a regular basis, often while ignoring the Constitution, the federal laws, and our foundational separation of powers. The Court majority is backing him up.

As of September 30, there were 190 active cases challenging Trump administration actions and more than 100 current cases in which lower federal courts have issued preliminary injunctions or temporary restrictions to block Trump administration actions.

A number of these cases have been undermined by the Court majority via the Emergency Docket.

The Trump administration reportedly has won 21 of the 23 Emergency Docket orders issued by the Supreme Court. According to NBC NEWS, “the volume of emergency filings and the rate at which the court has ruled in the administration’s favor are both unprecedented.”

For example, two federal courts restricted DOGE access to sensitive private information held by the Social Security Agency. The Court majority, however, issued an Emergency Docket order to overturn the restrictions while the cases went back to the lower courts for decisions on the merits.

This makes no sense. There was no emergency that required DOGE to have immediate access to this information. And once DOGE had access, anything could happen to the information, even if the courts later ruled on the merits against DOGE access. Final decisions on the merits can take months if not years.

In this and most other Emergency Docket decisions, the three Justices in the minority have joined in ever stronger dissents, making the case that the Emergency Docket is being misused and abused.

According to Stephen Vladeck, the legal scholar who wrote the book, “The Shadow Docket,” these Emergency Docket rulings “are producing massive, permanent and irrevocable effects on millions of people’s lives (to say nothing of our constitutional system).”

Vladeck has also warned “about what it would mean for the court’s legitimacy if it keeps handing down high-profile, divisive rulings without providing even a modicum of explanation, all while expecting lower-court judges to nevertheless follow them and the American people to nevertheless accept them.”

This decline in credibility is occurring. The Court’s “legitimacy” has been called into question in recent years by the American people. The Gallup Poll (October) and a Pew Research Center poll (September) found 52 percent and half of Americans, respectively, have an unfavorable view of the Supreme Court. These numbers approach historic lows.

Disenchantment is also spreading to the lower court federal judges. According to a rare NBC NEWS interview with ten federal judges, “Federal judges are frustrated with the Supreme Court for increasingly overturning lower court rulings involving the Trump administration with little or no explanation, with some worried the practice is undermining the judiciary at a sensitive time.”

Ever since Marbury v. Madison in 1803, the Supreme Court has been the final voice in our constitutional system to interpret the law and the Constitution. Yet by acting as Trump’s silent partner, the Court majority is participating in the Constitution’s erosion. It is turning an independent judiciary into an arm of Trump’s executive branch and doing fundamental damage to the Constitution’s separation of powers.

That’s a crisis for the Court’s legitimacy and, far more importantly, a crisis for American democracy.

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Fred’s Weekly Note appears on Thursdays in Wertheimer’s Political Report, a Democracy 21 newsletter. Read this week’s newsletter, and other recent editions, here. And subscribe for free here and receive your copy each week via email.