The work of judging was once simple. The Supreme Court would set rulings, and lower-court judges would follow its precedents. That pattern has been upended in the Trump administration, sparking a conflict between federal judges and the high court.
Lower-court judges are "frustrated" with the Supreme Court and its handling of cases involving President Donald Trump, said NBC News. They say a pattern has emerged: Courts take on cases against Trump. Judges "painstakingly research the law" and often rule against the administration, which appeals to the high court, which in turn makes emergency "shadow docket" rulings with "little to no explanation." Lower-court judges say that vagueness leaves them in the dark about how they are supposed to apply the law. The Supreme Court is supposed to give "well-reasoned, bright-line guidance" to lower courts, an anonymous judge said to NBC, but now rulings often come with "breathtaking speed" and "minimal explanation."
Some judges compare the Supreme Court's approach to Trump cases to Calvinball, the "fictional game without rules," said Axios. They echo Supreme Court Justice Ketanji Brown Jackson, who last month suggested her colleagues follow precisely one rule in their jurisprudence: "This administration always wins."
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The Supreme Court has been using a "shadow docket" to make its rulings "increasingly often," said Mark Guzelian at Harvard Political Review. Those decisions come "without oral arguments or a formal signed opinion with legal reasoning," as opposed to "merit docket" decisions in which the court is transparent about its reasoning so that lower-court judges can apply the law. That presents "dangers to the future of the law" in the U.S. and "could have the unintended effect of decreasing confidence in an already unpopular Supreme Court."
Lower courts are "never free to defy" the Supreme Court's rulings, said Justice Neil Gorsuch in a recent case. But high court justices are handing down "thinly (or entirely un-)explained rulings" and expecting lower-court judges to "read their minds," said Steve Vladeck at One First. The court "doesn't have to provide full-throated explanations" of its rulings. But it leaves lower courts vulnerable at a time Trump and his allies direct "heated rhetoric" at any judge who makes a ruling "even slightly adverse to the federal government."
What next?
Supreme Court Justice Brett Kavanaugh last week acknowledged that the high court's reasoning "isn't always so clear," said Politico. The process of reaching consensus on the nine-member court "can lead to a lack of clarity in the law and can lead to some confusion, at times," Kavanaugh said at a judicial conference. "We are always trying to do better."
One problem is that shadow docket rulings "become binding precedent," Erwin Chemerinsky, the dean of the University of California, Berkeley, School of Law, said at ABA Journal. There will always be a need for the court to issue emergency rulings. But those cases should not serve as a guide to the lower courts. Shadow docket cases "should be fully heard before becoming binding precedent."
