A Scourge Against Justice

[Tiassa]

A Legacy of Malice

This is both simple and complicated.

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.

Some judges believe the Supreme Court, and in particular Chief Justice John Roberts, could be doing more to defend the integrity of their work as President Donald Trump and his allies harshly criticize those who rule against him and as violent threats against judges are on the rise.

In rare interviews with NBC News, a dozen federal judges — appointed by Democratic and Republican presidents, including Trump, and serving around the country — pointed to a pattern they say has recently emerged:

Lower court judges are handed contentious cases involving the Trump administration. They painstakingly research the law to reach their rulings. When they go against Trump, administration officials and allies criticize the judges in harsh terms. The government appeals to the Supreme Court, with its 6-3 conservative majority.

And then the Supreme Court, in emergency rulings, swiftly rejects the judges' decisions with little to no explanation.

Emergency rulings used to be rare. But their number has dramatically increased in recent years.

Ten of the 12 judges who spoke to NBC News said the Supreme Court should better explain those rulings, noting that the terse decisions leave lower court judges with little guidance for how to proceed. But they also have a new and concerning effect, the judges said, validating the Trump administration's criticisms. A short rebuttal from the Supreme Court, they argue, makes it seem like they did shoddy work and are biased against Trump.

(Hurley↱)​

There is an idea in American politics and jurisprudence, called judicial activism, and Republicans used to complain bitterly to the point that the phrase meant pretty much any court ruling conservatives didn't like. And if, for instance, the last time I heard a loud political objection about this was a while ago, the difference is the Roberts Court. Chief Justice John Roberts famously described his job akin to calling balls and strikes, a baseball metaphor intended to suggest he was not activist. But he also did what baseball umpires have always done, which is impose their own strike zone.¹

Legal analyst Lisa Needham↱ considered the case for CJ Roberts as the worst chief justice of all time:

If the current Court had limited itself to the frequent conservative projects of dismantling civil rights and protecting big business, John Roberts might not get the nod as Worst Chief Ever. But the Roberts Court boasts two additional features that make it an unmatched threat to democracy. First, the conservatives on the Court have gleefully abandoned any pretense of rigorous legal analysis or consistency with past decisions. That's why you see those justices repeatedly mischaracterizing and omitting facts, shaping the narrative to fit their preferred outcome. It's why the Court keeps doing this little trick of "stealth reversals," where they overrule precedent without saying they are doing so, though to be fair, John Roberts loves openly overturning precedent when he feels like it.

Second, those same conservatives have also gleefully abandoned any pretense of checking or balancing the executive branch, instead letting themselves become a rubber stamp for Donald Trump's worst excesses. That was inevitable after the sweet immunity deal Roberts gave Trump to wipe out his staggering amount of criminal charges. Since the start of Trump's second term, the Court has routinely allowed the administration to implement objectively unconstitutional actions by pretending that they're simply making a narrow procedural ruling rather than blessing Trump's wholesale destruction of democracy. The Court has also gone to war with the lower courts, stepping in again and again to block rulings against the administration.​

Frustration among the lower courts has become so significant that we are now hearing it from those judges. In and of itself, this is significant, but American history suggests we were to expect this sort of judicial activism from liberal judges. Once the Roberts Court started issuing carveouts, such as first-term decisions in Safford and Ricci, conservatives learned to appreciate the finer distinctions between stealth reversals and legislating from the bench.

"It is inexcusable," one judge told NBC News. The Court majority "don't have our backs."

When judges issue rulings the Trump administration does not like, they are frequently targeted by influential figures in MAGA world and sometimes Trump himself, who called for a judge who ruled against him in a high-profile immigration case to be impeached. White House deputy chief of staff Stephen Miller has said the administration is the victim of a "judicial coup."

The judge who said the Supreme Court justices are behaving inexcusably has received threats of violence and is now fearful when someone knocks on the door at home.

If major efforts are not made to address the situation, the judge said, "somebody is going to die" ....

.... The Supreme Court, a second judge said, is effectively assisting the Trump administration in "undermining the lower courts," leaving district and appeals court judges "thrown under the bus."

The Supreme Court has an obligation to explain rulings in a way the public can understand, a third judge said, adding that when the court so frequently rules for the administration in emergency cases without fully telling people why, it sends a signal. The court has had strong left-leaning majorities in the past, but what is different now is the role emergency cases are playing in public discourse.

The Supreme Court, that judge said, is effectively endorsing Miller's claims that the judiciary is trying to subvert the presidency.

"It's almost like the Supreme Court is saying it is a 'judicial coup,'" the judge said.​

It's not just, as Needham put it, that the conservative majority "abandoned any pretense of checking or balancing the executive branch"; nor is it merely that Roberts' prejudice toward the Court's prestige and power² has done much to denigrate and diminish the conservative pretense against judicial activism, but, rather, the majority's betrayal of the lower courts, the actual weakening and potential ruination of the Judiciary, will define his legacy. It's one thing if, as Needham recalls, the Taney and Fuller Courts are icons of racism and malice, such notorious opponents of civil rights, but the Roberts Court is destroying the foundation upon which such testaments to malice relied by destroying the foundation for the entire judiciary. John Roberts' legacy will be to make Marbury into not so much a judicial suicide pact as a drowned-in-the-bathtub murder-suicide. Historically, the opponents of judicial review will have survived long enough to deliver the killing blow.

The Republic is resilient and resourceful, and the Judiciary itself will not die so easily. It is entirely possible the system will survive this utterly unnecessary shock, but in American jurisprudence there is a saying, that the attempt counts for something. And the attempt itself will define how Chief Justice John Roberts will be remembered in history.
____________________

Notes:

¹ Social media was alight for a short while, last night, with discussion of strike zones after the Astros topped the Yankees 8-7 in a contest drawing louder and sharper criticism than usual. Okay, it wasn't much of a discussion, just a lot of anger and accusation about a lot of missed calls.

² See #2↑ above, The current Supreme Court majority has achieved powerful results, but in doing so invalidated the politic that advanced it to power. In its way, the accompanying Richards cartoon illustrates the difference between once upon a pretense and how it's going.​

Hurley, Lawrence. "In rare interviews, federal judges criticize Supreme Court's handling of Trump cases". NBC News. 4 September 2025. NBCNews.com. 4 September 2025. https://www.nbcnews.com/politics/su...ump-cases-federal-judges-criticize-rcna221775

Needham, Lisa. "The worst chief justice of all time". Public Notice. 10 July 2025. PublicNotice.co. 4 September 2025. https://www.publicnotice.co/p/john-roberts-worst-chief-justice-of-all-time

 

[parmalee]

This:

"It is inexcusable," one judge told NBC News. The Court majority "don't have our backs."

When judges issue rulings the Trump administration does not like, they are frequently targeted by influential figures in MAGA world and sometimes Trump himself, who called for a judge who ruled against him in a high-profile immigration case to be impeached. White House deputy chief of staff Stephen Miller has said the administration is the victim of a "judicial coup."​

​

The judge who said the Supreme Court justices are behaving inexcusably has received threats of violence and is now fearful when someone knocks on the door at home.​

​

If major efforts are not made to address the situation, the judge said, "somebody is going to die" ....​

​

.... The Supreme Court, a second judge said, is effectively assisting the Trump administration in "undermining the lower courts," leaving district and appeals court judges "thrown under the bus."​

honestly is perhaps more terrifying than anything yet with this administration. And also a very good indication of things to come.

But this:

​

The Supreme Court has an obligation to explain rulings in a way the public can understand, a third judge said, adding that when the court so frequently rules for the administration in emergency cases without fully telling people why, it sends a signal. The court has had strong left-leaning majorities in the past, but what is different now is the role emergency cases are playing in public discourse.​

​

Seriously? Dude, for the longest I would force myself to try and plough through rulings by Thomas and Scalia, while honestly trying to "pretend" that neither one of them is/was insane. Also, bluntly, I always had the hardest time buying that either one of them got anything beyond a secondary school education. And, perhaps irrespective of nothing, I recall hearing often that outside the court Scalia and RBG were rather chummy and cordial. That simply doesn't make sense to me and was indicative of what I've long considered the primary weakness, and moral failing, of Democrats generally. Again, I'm reminded of a line from Robert Wyatt's "Alliance":

It's hard to talk to enemies--and we are enemies. What we had in common makes it even worse.

 

[Tiassa]

The Long Shadow of John Roberts

Conservatives used to complain of "judicial activism", in this context often described as "legislating from the bench". Steve Vladeck↱ recalls an important milepost in the Court of Chief Justice John Roberts:

… a fairly significant anniversary that hits today―the tenth anniversary of the Court's five rulings on February 9, 2016, in which a 5-4 majority granted emergency relief to block President Obama's "Clean Power Plan." The orders, one of which is pictured below, were unsigned and entirely unexplained. And they were also, at least at that point, completely unheard of. As Justice Kagan would note in 2022, "Never before had the Court stayed a regulation then under review in the lower courts."

In retrospect, the Court's interventions on February 9, 2016 were the birth of what we might call the modern emergency docket (or whatever you want to call it). Although the justices had regularly entertained (and sometimes granted) applications for emergency relief in death penalty and election cases in the years leading up to 2016, there are virtually no examples of full Court emergency relief respecting national (or even non-election-related state) policies prior to the Clean Power Plan orders. Indeed, the Court's norm for decades had been to have emergency applications resolved only by individual justices—not by the full Court—at least in part to moderate the effects of any rulings. And yet, within 18 months of the Clean Power Plan rulings, the Court was regularly receiving applications from (and granting emergency relief to) the first Trump administration—rulings that, following the precedents the Court set in the Clean Power Plan cases, were unsigned and entirely unexplained.​

The Chief Justice, who famously compared his role to that of a baseball umpire, calling balls and strikes, has established his own reputation for an arbitrary strike zone. And while Roberts' motives are a subject of constant murmuring whirl, the thing to remember is that his partisan motives are subordinate to his political motive. For Roberts, the prestige and power of the Court are his first priority; fulfilling his conservative agenda is subordinate to that standard. Like the Richards cartoon¹ about the Dobbs decision: It's not just the political result, but how the Court gets there.

And if, in recent years, Roberts failed to restrain the worst instincts of his conservative colleagues, he also seems to have given over. Pandering to the Trump administration will be one of the most glaring infamies of the Roberts Court, but his legacy will include many tells, and the Chief Justice's transformation of the emergency docket will either endure or be circumstantially scaled back by a Court reluctant to fully retract, and either way its ugliness will harm the Supreme Court and diminish its reputation.
____________________

Notes:

¹ "Tearing Down the Temple of Justice", 25 June 2022—

Spoiler

—see also #2↑ above.​

Vladeck, Steve. "209. The Modern Emergency Docket Turns Ten". One First. 9 February 2026. SteveVladeck.com. 9 February 2026. https://www.stevevladeck.com/p/209-the-modern-emergency-docket-turns

 

[Tiassa]

Let Him Who Hath Understanding

The stuff of a couple tweets; first, this↱—

Spoiler

https://twitter.com/x/status/2046263227525288366

—then the followup↱:

Spoiler

https://twitter.com/x/status/2046267577211433398

A reporter, Jimmy Hoover, reports:

Just heard a doozy from Justice Alito in today's Supreme Court argument about federal court procedure: "When have we reached out to overrule a decision when we haven’t even been asked to do it?"

Alito, of course, authored the Dobbs ruling overturning Roe v. Wade. Mississippi's petition did not originally ask it to do so.​

He also reminds three questions presented in the Dobbs litigation. And then a question arises in the comments about a technicality of finding "all" of a certain prohibition are unconstitutional. A question arises↱: "But answering ‘no’ to the first question would invalidate Roe in practical terms, no?"

Hoover observes the Chief Justice's concurrence in Dobbs, highlighting two passages:

In urging our review, Mississippi stated that its case was "an ideal vehicle" to "reconsider the bright-line viability rule," and that a judgment in its favor would "not require the Court to overturn" Roe v. Wade …

‡​

[… adherence to a simple yet] fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary to not decide more.​

Yeah, that Chief Justice.

Maybe next Alito can ask when the Court has ever reached out to decide a case about something that never happened. Y'know, because he's asking for a friend. No, really, he would be; Gorsuch wrote 303 Creative. And, yes, the Chief Justice went along with that one, too.

And, to be particular, there is actually some context to those passages, even in the limited text the screenshots provide, that reinforces Hoover's point, but it's also part of a long discussion to make what is essentially a short but important and affecting point: The temerity of the Roberts Court is absurd.

That said, the short form of the context is to watch the Chief Justice put on a careful pretense while concurring with the thing he seems to be advising against. Inasmuch as he thinks he's not overturning Roe, that day, he did, at least, turn it on its head along the way.

But, sure, when have they ever?

Does Alito really think never has he ever?

 

[Tiassa]

On Judicial Activism

From the New York Times↱:

Just after 6 p.m. on a February evening in 2016, the Supreme Court issued a cryptic, one paragraph ruling that sent both climate policy and the court itself spinning in new directions.

For two centuries, the court had generally handled major cases at a stately pace that encouraged care and deliberation, relying on written briefs, oral arguments and in-person discussions. The justices composed detailed opinions that explained their thinking to the public and rendered judgment only after other courts had weighed in.

But this time, the justices were sprinting to block a major presidential initiative. By a 5-to-4 vote along partisan lines, the order halted President Barack Obama's Clean Power Plan, his signature environmental policy. They acted before any other court had addressed the plan's lawfulness. The decision consisted of only legal boilerplate, without a word of reasoning.

At the time, the ruling seemed like a curious one-off. But that single paragraph turned out to be a sharp and lasting break. That night marks the birth, many legal experts believe, of the court's modern "shadow docket," the secretive track that the Supreme Court has since used to make many major decisions, including granting President Trump more than 20 key victories on issues from immigration to agency power.

Since that night a decade ago, the logic behind the Supreme Court's pivotal 2016 order has remained a mystery. Why did a majority of the justices bypass time-tested procedures and opt for a new way of doing business?​

It's true that if you go back to before the Roberts Court, conservatives often accused and complained about "judicial activism" as a means of "legislating from the bench". That is to say, once upon a time, Republicans really did pretend this sort of behavior was wrong, often describing a vague but evil liberal plot to undermine the rule of law. The difference isn't simply that conservative judicial activism is good because they like it, but that the realities of what those judicial outlooks do are different and work differently.

It was always strange, for instance, to hear Republicans and conservatives remind that there is no right to privacy in the Constitution; but now that the Supreme Court has announced its intention against Griswold, it's important to remind that certain rights always were formulaic: If this, and that, then result. That sort of thing. They even use but and not.

The problem, for conservatives, is that such formulations are too general and permissive. It is very difficult to formulate so particularly as conservatives have long preferred because they are hemmed by the Constitution. For the conservative politic driving the Republican Party, the last however many decades, depending on how you count them↗, have increasingly constrained and even refused conservative ambition. This result is a logical consequence of how history built a contiguous narrative within the judiciary—

In public, Chief Justice John G. Roberts Jr. has cultivated a reputation for care and caution. The papers reveal a different side of him. At a critical moment for the country and the court, the papers show, he acted as a bulldozer in pushing to stop Mr. Obama's plan to address the global climate crisis.

When colleagues warned the chief justice that he was proposing an unprecedented move, he was dismissive. "I recognize that the posture of this stay request is not typical," he wrote. But he argued that the Obama plan, which aimed to regulate coal-fired plants, was "the most expensive regulation ever imposed on the power sector," and too big, costly and consequential for the court not to act immediately.

In the Trump era, he and the other conservative justices have repeatedly empowered the president through their shadow docket rulings. By contrast, the papers reveal a court wielding those same powers to block Mr. Obama. Justice Samuel A. Alito Jr. warned that if the court failed to stop the president, its own "institutional legitimacy" would be threatened.

The court's liberals pushed back, but compared with their recent slashing dissents, they were not especially forceful, mostly confining their arguments to procedures and timing.

The papers expose what critics have called the weakness at the heart of the shadow docket: an absence of the kind of rigorous debate that the justices devote to their normal cases.​

—and the Roberts Court, feeling too confined by that integrity, has departed from that contiguity, surrenders that record, in order to pursue conservative ambition, apparently according to the principle that this time, it's just that important.

Last year, in describing "the worst chief justice of all time"↱, Lisa Needham explained—

the conservatives on the Court have gleefully abandoned any pretense of rigorous legal analysis or consistency with past decisions. That's why you see those justices repeatedly mischaracterizing and omitting facts, shaping the narrative to fit their preferred outcome. It's why the Court keeps doing this little trick of "stealth reversals," where they overrule precedent without saying they are doing so, though to be fair, John Roberts loves openly overturning precedent when he feels like it.​

—and it's worth observing that in describing "stealth reversals", she refers out to University of California Davis Law Review, which includes a section (III.E) on "Stealth Reversals Through the Shadow Docket":

The Supreme Court has historically used unsigned emergency orders to halt cases until it can comprehensively make decisions on the merits. As shown most thoroughly by Professor Stephen Vladeck, the Court's conservative Justices have increasingly relied on these orders to substantively change constitutional and statutory law. Offering little (or at times no) explanation and reasoning without the aid of oral argument and full briefing, these unsigned and often unexplained orders have consequentially realtered law on capital punishment, COVID-19 policy and the power of federal agencies, immigration environmental protection, voting rights, and religious freedom and the separation of church and state, among other domains.

There are serious harms to constitutional democracy and the Court's legitimacy by deciding substantive cases through processes that lack the "high standards of procedural regularity [of the Court's] merits cases." Yet there are benefits to justices focused on managing perceptions of the Court's public standing and the partisan valence of its jurisprudence. Justice anonymity masks ideological cleavages on the Court, and these cleavages are especially pronounced in the post-Justice Kennedy shadow docket. Recent shadow docket orders have divided along "ideological, if not strictly partisan, lines," appearing "to align more closely with Republican political preferences than with any consistent, neutral approach to the underlying legal issues."

(Hosie↱)​

That is to say, it's pretty much the embodiment of a judicial activism conservatives used to warn against. That entire section of the 2025 article is a compelling read, and the notes even more so.

Still, "Reasoning is the currency of law," Hosie writes. "By providing either paltry or no reasoning, these orders do not provide the public any indication of the doctrinal changes they establish, eliminating the fodder that generates public dialogue and depriving interested parties of baselines to understand and challenge legal reasoning and jurisprudential outcomes". The note on that observes a 2022 article from another legal journal "arguing these orders 'leave litigants, the government, and the general public in the dark about how to fight for and against this type of emergency relief'"; that is to say, the orders leave people uncertain how to actually litigate them.

This part of the Roberts Court and its legacy is tragic, the uncertainty and unreliability of the judiciary.
____________________

Notes:

¹ see also, #21↑ above.​

Hosie, Duncan. "Stealth Reversals: Precedent Evasion in the Roberts Court and Constitutional Reclamation". UC Davis Law Review, v.58 n.3. February, 2025. LawReview.UCDavis.edu. 25 April 2026. https://lawreview.law.ucdavis.edu/sites/g/files/dgvnsk15026/files/2025-02/58-3_Hosie.pdf

Kantor, Jodi and Adam Liptak. "Inside the Supreme Court's Risky New Way of Doing Business". The New York Times. 18 April 2026. NYTimes.com. 21 April 2026. https://www.nytimes.com/2026/04/18/us/politics/supreme-court-shadow-docket.html

Needham, Lisa. "The worst chief justice of all time". Public Notice. 10 July 2025. PublicNotice.co. 4 September 2025. https://www.publicnotice.co/p/john-roberts-worst-chief-justice-of-all-time

https://twitter.com/x/status/2045494074543665396

 

[TheVat]

That is to say, it's pretty much the embodiment of a judicial activism conservatives used to warn against.

In a way, the shadow docket thing is more ominous than other Trump legacies, given the lifetime appointment system. I wish Thomas and Alito sufficiently good health to last through MAGA and then graciously retire under a restoration administration.

 

[Tiassa]

Notes on Callais and the Roberts Court

Jesse Wegman↱ for Brennan Center:

Among the many insults of the Supreme Court's Wednesday ruling in Louisiana v. Callais eviscerating the last functional provision of the Voting Rights Act, one in particular stuck out to me.

It appeared in the final lines of the majority opinion by Samuel Alito. "While the dissent wraps itself in the mantle of stare decisis," Justice Alito wrote, using the Latin term for the Court's longstanding practice of abiding by its prior rulings, "the dissent is unabashedly at war with key precedents." Alito then identified the precedents he was thinking of: Shelby County v. Holder, Rucho v. Common Cause, and Brnovich v. Democratic National Committee.

A quick refresher: Shelby County, from 2013, was the first crippling blow to the Voting Rights Act; Rucho, from 2019, denied the Court's protection to Americans whose votes have been erased by partisan gerrymandering; and Brnovich, from 2021, created new standards to undermine Section 2, the same provision at issue in Callais this week.

Do you see a pattern? These cases were all decided in the last 13 years, all by the Roberts Court, and all part of the right-wing justices' long project to undermine the voting rights of millions of Americans, especially those who happen to be Black and/or vote for Democrats. Alito was in the majority for all three, and he wrote the majority opinion in Brnovich.

In conclusion, Alito wrote, "Respect for precedent cannot be a one-way street."

The point of respecting precedent, of course, is to provide stability and predictability to the Court's decisions and to buttress the Court's legitimacy with the American people not only year to year, but for generations. That's not what Alito was doing here. In citing these specific cases and demanding "respect" for them as precedent, he was dunking on the dissenters, and on the millions of Americans who cherish (or cherished) the Voting Rights Act.​

Richared Pildes↱ for Democracy Project at NYU Law:

Many people don't realize how episodic Supreme Court entry into various bodies of law can be, which is part of why that resistance to Gingles remained in suspended animation before yesterday. The only time the Court directly affirmed the Gingles framework since I wrote that 2007 article was three years ago, in a case from Alabama, Allen v. Milligan.

Many voting-rights scholars thought the Court would re-write Gingles then. The reason it did not, in my view, is that Alabama had briefed and argued the case in such a confusing fashion that it gave the Court — likely to be sympathetic to Alabama — no help. This leads to another underlying dimension to yesterday's Callais decision that's easy to miss: the 2025 change in administration following the 2024 election played a central role in yesterday's decision. Unlike in Allen, the Solicitor General gave the Court a roadmap for how to effectively end Gingles and the Court's opinion followed that map closely.

There's also an underlying litigation and political dynamic that explains why the Court finally returned to engaging directly with Gingles and the VRA after the 2020 round of redistricting. The Republican Party was in control of redistricting in Southern states in 2010 for the first time since Reconstruction; and in 2020, it remained in control. Yet in both rounds, the Republican Party was willing to live with the VRA status quo. It did not challenge VRA districts that had been drawn in the South, most of which traced back to that 1990s round of redistricting. The Republicans grumbled about the "partisan unfairness" of being required to draw districts that would inevitably elect Democrats. But in most places, including Alabama and Louisiana, the Republicans left those VRA districts intact and gerrymandered around them.

The trigger for the Court's re-entry into VRA issues after the 2020 redistricting was, ironically, the success of voting-rights advocates in the lower courts. Armed with first-rate social scientists and powerful new technology that enabled the drawing of hundreds of thousands of potential maps, plaintiffs were able to ferret out new 50%+1 VRA districts. When the lower courts ordered these additional VRA districts to be created, the states – now in the posture of defending their 2020 maps – then directly pressed the Court to revisit the core of Gingles for the first time in many decades.​

It's worth clarifying that while the term stare decesis does not appear in Pildes assessment of the Callais implications, it is implicit in his discussion of Gingles: "Yet for many voting-rights scholars, a surprising aspect of the Court's decision is that Gingles actually survived as long as it did." But if, even nineteen years ago, "As a matter of Supreme Court doctrine, Gingles [looked] more like the last gasp of an older, dying era than the framework for a new one", the Callais decision is a revival.
____________________

Notes:

Pildes, Richard. "Supreme Court's Gutting of Voting Provision Was Long Time Coming". Democracy Project. 1 May 2026. DemocracyProject.org. 3 May 2026. https://democracyproject.org/posts/supreme-court’s-gutting-of-voting-provision-was-long-time-coming

Wegman, Jesse. "The Supreme Court's Hermetically Sealed Logic on the Voting Rights Act". Brennan Center for Justice. 1 May 2026. BrennanCenter.org. 3 May 2026. https://www.brennancenter.org/our-w...s-hermetically-sealed-logic-voting-rights-act

 

[Tiassa]

The Banality of John the Meme

Long Time Ago: Chief Justice John Roberts, ca. 2008​

Steve Vladeck↱ invokes a meme, "We're All Trying to Find the Guy Who Did This".

It's not just the brazen racism we've seen in some of the state legislatures that are rushing to eliminate majority-minority districts (e.g., "y'all need to shut up, boy"), or the not-exactly-obvious reading of Virginia law that the Virginia Supreme Court adopted to nix Virginia voters' attempt to belatedly redraw the Commonwealth's congressional districts, but also Alabama's … aggressive … requests for emergency relief to the U.S. Supreme Court to let it get out from under earlier district court rulings—including ones the Supreme Court affirmed on the merits—so it can re-draw its maps in time for this cycle.

All of this came the same week that Chief Justice Roberts, in remarks at the Third Circuit Judicial Conference, complained about the public perception that the Court is "political." In his words, "I think [people] view us as purely political actors, which I don't think is an accurate understanding of what we do." Shortly after that, he added that the Court is "simply not part of the political process."

Roberts may tell himself that the Court is not part of the political process, but the (growing) evidence is overwhelmingly to the contrary. Indeed, the Court inserted itself into the midterm cycle—and set off this race to the bottom—knowingly (if not deliberately), both in what it ruled in Callais and in its willingness to issue the judgment immediately. That latter development was an unmissable signal that it was not averse to having this exact kind of chaos unfold on the ground—a point Justice Jackson made explicitly in her dissent from last Monday's order. In her words, "as always, the Court has a choice." By issuing the Callais judgment immediately, the majority "unshackles itself from [doctrinal] constraints . . . and dives into the fray."

This, to me, is the key point: whatever one thinks of the ruling in Callais, the Court chose this chaos. And now that it is on the receiving end of applications from Alabama (and with an application from Virginia apparently on the way), to suggest the Court is not "part of the political process" is to deny the entirely obvious (and entirely predictable) consequences of the Court's own behavior—not just in Callais, but before April 29 and since.​

And he really does take the moment to explain the meme to his readers. That said, "here, the 'store' is the stability of our electoral process, and the guy in the hot dog costume is Chief Justice Roberts."
____________________

Notes:

Vladeck, Steve. "227. 'We're All Trying to Find the Guy Who Did This'". One First. 11 May 2026. SteveVladeck.com. 11 May 2026. https://www.stevevladeck.com/p/227-were-all-trying-to-find-the-guy

Spoiler

 

[Tiassa]

Judge Wants to Know What Gives

Jordan Fischer↱ reports for Bloomberg Law:

A federal judge pressed Justice Ketanji Brown Jackson on how lower courts are supposed to interpret the Supreme Court's increasingly common and often unexplained emergency orders.

Judge Richard Gergel, who was appointed to the US District Court for the District of South Carolina by Barack Obama, vented his frustration to Jackson during an appearance Monday before the American Law Institute at the Ritz-Carlton in Washington.

"I can find, as a district judge, it mystifying at times where an emergency docket position of maybe just two or three pages appears to countermand longstanding Supreme Court precedent," Gergel said. "Are we to apply the brief, short stay decision or denial of stay or are we to follow 50 years of precedent?"

It was a "legitimate question," Jackson said, pointing the audience to a recent talk she gave at Yale Law School critiquing the court's handling of its emergency docket as sometimes "utterly irrational."

The comments by Gergel, a 15-year veteran of the bench who presided over the murder trial of Dylann Roof, came during a period of heightened tension among the justices and lower courts as the Supreme Court has repeatedly stepped in to grant emergency relief—often at the behest of the Trump administration.

In August, Justice Neil Gorsuch took the unusual step of admonishing judges in a concurring opinion not to "defy" precedent from the court's emergency docket decisions. Such decisions are typically unsigned and often containing little or no reasoning, and Gorsuch's rebuke received pushback from judges around the country.​

Brief notes, for internationals, and also American newbs:

1) Prior to the Roberts Court, "judicial activism" and "legislating from the bench" were the hip lingo among Republicans for any judicial review they didn't like, any decision that didn't go their way. We can almost bookend the period from approximately 1986 to 2005¹, and then the Roberts Court began.

2) Observe the intersection of countermand unexplained with demand to not defy the unexplained change.​

____________________

Notes:

¹ During which the judicial activism Van Alstyne describes in "Judicial Activism and Judicial Restraint", his contribution to Judicial Power and the Constitution (ed. Fisher, 1986) seems caricaturized or even discarded entirely in a time of increasing conservative grievance. Preceded by decisions including Brown, Miranda, Loving, and Roe, the reactionary symbolism and influence of Romer in 1996 very nearly cannot be overstated: The generation raised to react against the fact that mere Christianity was not in and of itself license to privilege under law also survived Lawrence, in 2003, before announcing its coming of age in 2010, as part of the Tea Party reaction to the election of Barack Obama.​

Fischer, Jordan. "Judge Presses Jackson on 'Mystifying' Emergency Docket Orders". Bloomberg Law. 19 May 2026. News.BloombergLaw.com. 19 May 2026. https://news.bloomberglaw.com/us-la...jackson-on-mystifying-emergency-docket-orders

See Also:

Van Alstyne, William. "Judicial Activism and Judicial Restraint". Judicial Power and the Constitution. 1986. Ed. by Louis Fisher. New York: MacMillan, 1990.

 

[Tiassa]

What It Takes (b/w, "Because, of Course")

Raw Story↱ explains:

Supreme Court Justice Samuel Alito's son has been secretly working as a political appointee attorney at the U.S. Treasury Department, raising serious conflict of interest questions as high-stakes cases involving the agency have made their way to the nation's highest court, according to a report.

Philip Alito was hired to Treasury's office of the general counsel in the early months of the second Trump administration, according to four former government officials, yet his presence there has been treated as something close to a state secret, reported NOTUS.

"If people were introducing themselves by first and last name, he'd just say 'Phil,' not Phil Alito," said one former official. "He's a pretty soft-spoken guy."

The younger Alito maintains no public resume, has no LinkedIn profile and his name appears nowhere on the Treasury Department's website. Colleagues recall that he went out of his way to avoid drawing attention to his famous surname.

But the low profile belies the significance of his role. As an attorney-adviser in the general counsel's front office, Philip Alito was briefed on important Treasury matters across the board and offered legal feedback at the highest levels.

"There's no doubt he got that position because of who he is," a second source said.​

As blatant a scandal as this is, it also seems unsurprising. The separatist Supreme Court justice has always warranted doubt, but this latest is just so straightforward: Treasury has already been before the Supreme Court while Phillip Alito worked in the Department's office of general counsel, and neither the Trump administration nor Justice Alito said a word about the conflict of interest: "His father did not recuse himself from the case, ultimately joining a dissent when the majority ruled against the administration in February."

†​

This is what it takes.

People will sometimes pretend parity or similarity between two different things. Being made of metal and having wheels might accurately describe both an automobile and a child's tricycle, but there are reasons nobody really thinks they're the same thing.

Being made of words is a similarly general characteristic. More particularly, though, there is a question of what those words mean. We can achieve cacophony by disregarding such notions and hold all such utterances equal for having been uttered.

As a Supreme Court justice, Samuel Alito has made clear that facts don't matter.¹ And while his conservative colleague, Clarence Thomas, is much better-known for corruption, Alito refuses to recuse from cases when he has financial investments in a litigant, gives special consideration to politics he sympathizes with, is known to leak guarded Court information, blames his wife for displays of white separatism at his home, and now is known to have a familial interest in the Trump administration.

And when we take a moment to consider what it's for, this is what it takes. It ought to be a breathtaking implication, except it's been going on so long the inevitable rupture and cascade can feel underwhelming and even unimpressive.

But that's also how these machinations persist; the sleights and slights were always underwhelming and unimpressive, and easy to make excuses for. In the end, though, this is an example of what it takes to legitimize and sustain a political argument. It really shouldn't be too much to ask that such legitimacy meets basic criteria of validity and reliability, and this is what it takes to pretend otherwise.

This is what it takes to pretend that parity or similarity between different things, to sustain its legitimacy without any reliable framework to validate the application. Some who would arbitrarily validate such cacophony think themselves somehow heroic for doing so, but this is what it takes to fulfill that heroism.

Given every opportunity to not make it look like a fix, the politicians go out of their way to make it look like a fix. It's never clear quite what political view that middle road was protecting and legitimizing, but at least it didn't suppress corruption. Y'know, effin' cancel culture and all that.

But, yeah, this is what it takes.
____________________

Notes:

¹ see "Is morality subjective or objective?" #113 (2022)↗, for an example:

「If one disdains morality in general, then your ninety-nine percent argument looks attractive; in human history, morality has yet to destroy the species, but your pitch describes how it still might, and Justice Alito illustrates how that works: If you can get ninety-nine percent of people to ignore objective reality in favor of their make-believe surrogate, does that somehow mean they're right?

And if that subjectivity wrecks the place and inflicts suffering, will you agree with them that what they are doing is moral, simply because enough people think treating you that way is not simply okay, but a moral imperative?」​

Furthermore, it seems important to remind: That entire case was literally make-believe. That's not political rhetoric, but a matter of record; 303 Creative is based on speculative make-believe that never occurred. This is what it means to assert that facts don't matter to Alito. Or, maybe facts do matter enough that he should labor to evade and overcome them. What remains true is that the arbitrariness of doing so would denigrate the basic concept of morality by detaching it from what is real and known; problematic enough in general, and self-defeating in Alito's particular.​

Gettys, Travis. "Samuel Alito hit by new scandal as son found secretly working for Trump's Treasury: report". RawStory. 28 May 2026. RawStory.com. 28 May 2026. https://www.rawstory.com/samuel-alito-conflict-of-interest/

 

[James R]

"If people were introducing themselves by first and last name, he'd just say 'Phil,' not Phil Alito," said one former official. "He's a pretty soft-spoken guy."

"There's no doubt he got that position because of who he is," a second source said.

Of course, we should just believe everything "one former official" and "a second source" tells us.

 

[parmalee]

Of course, we should just believe everything "one former official" and "a second source" tells us.

Is someone implying that "we should just believe everything" these individuals say? I must have missed that part. (Methinks something something about straw men goes here.)

Do you have reason to dispute either of these contentions? As for the first... uh, why? Do you have evidence that Phil Alito introduces himself as Phil Alito? As for the second: the source expressed an opinion, to which they are entitled. Do you have evidence to support, or a strong reason to believe, that Mr Alito did not get the position because of who his father is? Do you believe that there may, in fact, be some doubt held by someone somewhere? What is the basis for your suspicion here?

 

[Tiassa]

As for the second: the source expressed an opinion, to which they are entitled.

Considering that "his name appears nowhere on the Treasury Department's website" and the fact that neither Treasury nor Justice Alito acknowledged the conflict of interest when Treasury was before the Court, the default position here would be to observe the appearance of impropriety.

Compared to all else, it's one thing that the second source expressed an opinion, but it's really hard to figure an alternative explanation for why Treasury would attempt this sort of stunt. It's not even a question of risking an appearance of impropriety, but an inevitable impropriety, so if we are to wonder why Phil Alito, there are very few reasons why.

 

[James R]

Is someone implying that "we should just believe everything" these individuals say?

Which individuals? How do we know these supposed "sources" are even real people?

Oh, and by the way, I also didn't draw attention to the "four former government officials". Did you notice that one, etiher? I assume you didn't.

I must have missed that part. (Methinks something something about straw men goes here.)

Yeah, it seems like you completely missed the point. Was that accidental, or deliberate?

Do you have reason to dispute either of these contentions?

What value are contentions made by anonymous - possible fictitious - unnamed sources?

Why would I even want to listen to what these supposed "sources" have to say?

Do you have evidence that Phil Alito introduces himself as Phil Alito?

Why do you care how he introduces himself, all of a sudden?

You want to jump to the defence of these anonymous, possibly fictitious, "sources"? Why?

As for the second: the source expressed an opinion, to which they are entitled.

How do you know the "sources" in the quote are real people at all? Do you have any evidence that they are?

Do you have evidence to support, or a strong reason to believe, that Mr Alito did not get the position because of who his father is?

Do you have evidence to support, or a strong reason to believe, that Mr Alito did get the position because of who his father is? If you do, I hope it's not from anonymous, possible fictitious, "sources". Surely you have something better than that, even if Tiassa does not?

Do you believe that there may, in fact, be some doubt held by someone somewhere?

Is that a general question? What do you think? Go on, take a guess.

What is the basis for your suspicion here?

Is that not clear to you, yet? Think it through. Take your time. Next time, maybe don't go off half cocked because you have a chip on your shoulder.

 

[James R]

Considering that "his name appears nowhere on the Treasury Department's website"...

Did you check?

... and the fact that neither Treasury nor Justice Alito acknowledged the conflict of interest when Treasury was before the Court...

To which court hearing are you referring? What was asked? What was denied?

Compared to all else, it's one thing that the second source expressed an opinion...

Who is the "second source"? Is that a real person? How do you know?

 

[TheVat]

As blatant a scandal as this is, it also seems unsurprising. The separatist Supreme Court justice has always warranted doubt, but this latest is just so straightforward: Treasury has already been before the Supreme Court while Phillip Alito worked in the Department's office of general counsel, and neither the Trump administration nor Justice Alito said a word about the conflict of interest: "His father did not recuse himself from the case, ultimately joining a dissent when the majority ruled against the administration in February."

The facts do point to failure to recuse, at minimum. Justice Alito is another repeat offender in that particular breach of professional ethics.

To which court hearing are you referring? What was asked? What was denied?

Tiassa did, from context, make clear that it was SCOTUS. And that Treasury cases were landing there. How would the breach of ethics in Dad not recusing himself not be obvious from those bare facts?

This isn't rocket science. "My son is legal counsel in this department and therefore has involvement with this case now before us. I must therefore recuse myself," would be the only ethical choice.

 

[parmalee]

Which...

You are a fucking embarrassment.

 

[parmalee]

This isn't rocket science. "My son is legal counsel in this department and therefore has involvement with this case now before us. I must therefore recuse myself," would be the only ethical choice.

It would appear that James is either a liar or simply an imbecile.

 

[James R]

You are a fucking embarrassment.

No. You're the fucking embarassment. Look at what Tiassa quoted. I will highlight all references to sources for you:

Supreme Court Justice Samuel Alito's son has been secretly working as a political appointee attorney at the U.S. Treasury Department, raising serious conflict of interest questions as high-stakes cases involving the agency have made their way to the nation's highest court, according to a report.

Philip Alito was hired to Treasury's office of the general counsel in the early months of the second Trump administration, according to four former government officials, yet his presence there has been treated as something close to a state secret, reported NOTUS.

"If people were introducing themselves by first and last name, he'd just say 'Phil,' not Phil Alito," said one former official. "He's a pretty soft-spoken guy."

The younger Alito maintains no public resume, has no LinkedIn profile and his name appears nowhere on the Treasury Department's website. Colleagues recall that he went out of his way to avoid drawing attention to his famous surname.

But the low profile belies the significance of his role. As an attorney-adviser in the general counsel's front office, Philip Alito was briefed on important Treasury matters across the board and offered legal feedback at the highest levels.

"There's no doubt he got that position because of who he is," a second source said.

So, what do we have here? Apparently, I have to break it down for you because you're a fucking embarassment.

We have:
1. An unidentified "report".
2. Information attributed to four unidentified "former government officials".
3. A report from something called "NOTUS", whatever that is.
4. A direct quote from an unindentified source who is referred to vaguely as "one former official".
5. Recollections from unidentified "colleagues".
6. Another quote from an unidentified "second source".

The rest is just claims made without any attribution or sources cited.

Now, parmalee, this is the standard you think is reasonable for believing everything in that piece of text to be true.

Not a single identifiable source is mentioned in the article (except possibly for the vague "NOTUS" reference).

How would a reasonable person (such as myself) judge the reliability of this little article? Answer: they would judge it as practically worthless. It looks like nothing more than an opinion piece by an author who might well have just made the whole thing up, as far as I can tell. It's useless as any kind of "news" or information.

If I was actually interested in investigating Philip Alito, I'd have to start from scratch. This little article would not help one bit to get to the facts, because it cites no sources.

You apparently feel the need to lash out with personal insults - not at the guy who wrote the sourceless article and not at the guy who quoted the guy who wrote the sourceless article, but at the guy who simply pointed out that the article is sourceless. Why?

Crawl back under your rock, parmalee. You're the fucking embarrassment here.

 

[James R]

Moderator note: Of course, I decided to issue an official warning to parmalee, both for his blatant insults directed at another forum member ("fucking embarrassment" and "imbecile") and for making an accusation that a forum member has told lies, without even attempting to document the supposed lies or to explain how it can be verified that there were lies told.

Essentially, parmalee just decided to lash out - at me, on this particular occasion - for no particular reason. This is unacceptable behaviour.

parmalee has developed something of an unfortunately habit of insulting other sciforums members. He has been warned on many prior occasions for the same kinds of unacceptable behaviours. Apparently, he either did not take time to think about why he was warned previously, or else he decided that he wasn't going to change his behaviour.

Due to accumulated warning points, this new warning might have justifiably led to a permanent ban for parmalee - a repeat offender who has been repeatedly informed that certain behaviours are unacceptable on this forum. However, I want to give parmalee another chance, as a long-standing member of sciforums, to think about his actions carefully, in the hope that he will finally learn something from all this and be able to draw on his experiences here to make positive changes in his life.

Subsidiary considerations for me are: (a) I don't want this to look like a personal vendetta of mine against parmalee (which it certainly is not), or an abuse of power of my part, so I am opting for leniency here; (b) the specific circumstances of parmalee's offences here seem almost petty, to the extent that it seems unfair to me that he should be banned permanently this time around. My hope is that cooler heads can prevail.

So: parmalee will be absent from sciforums for one month (in line with our published Warnings and Bans policy), after which he is free to return or not, as he sees fit. Some of his active warning points are due for expiry not long after he returns (if he decides to return), meaning that with a little patience he might be able to avoid a lengthy or permanent ban, even if he decides that breaking the rules is something he is driven to do. A simpler solution, of course, would be for him to act like a decent human being, in which case he will incur no further warnings and his existing points will eventually expire. Then there is the nuclear option, if he wants to make the traditional Grand Stomping Exit.

The ball will be in his court, one month from today.