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