I am beginning to think that Trump has “glossies” of John Roberts and a couple of the other Justices in the majority misnamed as “conservative.” (A genuine conservative would conserve precedents–these justices are radical, and in at least two cases–Alito and Thomas–demonstrably corrupt.)
The judges of the lower federal courts–even the ones appropriately labeled conservative–have demonstrated fidelity to the rule of law, and to stare decisis, or precedent. Judges nominated by both Democratic and Republican Presidents, judges nominated by Trump himself, have ruled against our would-be dictator over 80% of the time. They have issued well-researched, thoughtful judgments, clearly explaining the grounds of their decisions, only to be summarily over-ruled in terse, six to three Shadow Docket rulings from the Supreme Court.
Most Americans have never heard of the Court’s Shadow Docket, because–until recently–it has been used very sparingly. The shadow docket has formerly been used in Supreme Court cases requiring immediate decision–things like death penalty stays, injunctions, and other matters requiring urgency. Such urgent matters are thus decided without full briefing, oral argument, or written reasoning. When appropriately used, the Shadow Docket is a legitimate tool of Court jurisprudence, but the increased frequency of these decisions during the Trump administration has raised concerns about transparency and significantly damaged the Court’s legitimacy.
Decisions delivered via the shadow docket lack the detailed analysis that allows lower courts to align their own reasoning with that of the Supreme Court. The increasing frequency of these “stealth rulings” undermines the public’s understanding as well as the legal community’s ability to interpret, apply and conform.
It isn’t just the increased frequency of Shadow Docket use. Far too many of these brief and unsettling decisions have upended longstanding Constitutional rules. Easily the most appalling was the Court’s recent gutting of the Fourth Amendment’s requirement of probable cause. In a 6-3 vote in Vasquez Perdomo v. Noem, the Supreme Court temporarily halted a LA judge’s order that barred “roving patrols” from snatching people off California streets and questioning them based on how they look, what language they speak, what work they do, or even where they happen to be.
Both a Los Angeles federal court and the 9th Circuit Court of Appeals had ruled–in detailed, persuasive decisions– that these actions clearly amounted to illegal racial profiling.
In a stinging dissent, Justice Sotomayor warned that this decision turns Latinos into second class citizens. She wrote “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent.”
A lawyer friend who has been both a prosecutor and a defense attorney, as well as chief of a law enforcement department and a law school professor, reacted with an anguished Facebook post. He began ” The United States of America, a nation of laws, not men, no longer exists. Today the United States Supreme Court, in a 6-3 vote, decided that immigration officers may detain people for no reason other than the color of their skin…The United States Supreme Court approving detention based upon skin color is not just the end of the rule of law, it is the end of the United States as a constitutional democracy, which comes with separation of powers and no person being beyond the law.”
He proceeded to say that he would “surrender my admission to the United States Supreme Court. The admission comes with an oath the Court no longer recognizes, and I no longer recognize it.”
I taught Law and Public Policy to university students for 21 years. Many of those students were criminal justice majors, and along with the rest of the faculty, I emphasized the constitutional imperative of basing arrests on probable cause. We warned students against detaining citizens based upon “hunches” or–worse–identity, and shared the numerous legal cases that underlined that constitutional mandate.
The Court’s decision–contrary to decades of contrary precedent and to the uncontested facts underlying the lower court rulings–a decision delivered via the inappropriate Shadow Docket, was a betrayal not only of their oath, but of America.
If this country survives as a constitutional democracy–no sure thing–the Roberts Court will take a shameful place in history alongside the January 6th insurgents.
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Critics point to comments made by some, like Samuel Alito, dismissing concerns about the shadow docket as an attack on the court’s legitimacy. Alito claimed the term is “sinister” and an effort to undermine the institution. Others prefer alternative terms like “emergency docket” or “interim orders docket”
However, the lack of a clear, written rationale in shadow docket rulings creates confusion for lower court judges, who are tasked with following Supreme Court precedent. This can result in contradictory interpretations and inconsistent application of the law across the country.
Some legal experts propose that the court issue brief explanations for its shadow docket decisions to provide context and improve transparency. Legislation has also been introduced to mandate more detailed explanations for these rulings
From Steven Vladeck’s 8-25-25 Substack, “……..Gorsuch accused the lower courts in this case—and in two other cases—of open defiance of earlier rulings by the Supreme Court on emergency applications. More than that, Gorsuch claimed that the Court’s interventions in many of the Trump cases would be “unnecessary” but for bad behavior by lower courts.
I realize this will sound like a broken record to regular readers of this newsletter, but Gorsuch’s argument is not just specious; it is affirmatively dangerous—coming at a time when an increasingly popular claim by the President and his supporters is that any lower court ruling adverse to the administration is illegitimate. It would be one thing if Gorsuch had incontrovertible evidence of lower-court defiance. But as I show below the fold, the opposite is true. Instead, the real culprit here is the Supreme Court’s own majority, which continues to hand down thinly (or entirely un-)explained rulings in these cases and expect lower-court judges to read their minds in the face of entirely reasonable arguments for distinguishing the earlier rulings.”
After reading blogs like this one today for some time now – maybe since 1/20/25 – I wonder what will happen to stop the horror of redefining the rule of law and the abject corruption of the six Republican-appointed justices (small “J” on purpose).
I agree with Todd that the oligarchs have purchased – for not very much treasure – the SCOTUS majority outright. We are on the brink of an open civil war, and these 6 wankers are abetting the criminal enterprise in the White House.
What do we do about all of that?
I believe that Leonard Leo of the Federalist Society has chosen every right-wing jurist sitting on SCOTUS. The Kochs’ dark network funds the Federalist Society, which means they are all corrupted. They will always align themselves with the oligarchy “Network” and their goals. In the last several months, Trump has criticized the group for ruling against his tariff policy, leading to a rift, but I doubt it will last long.
You don’t need to say we’re losing our “constitutional democracy” because we’re an oligarchy. The Supreme Court is just another example of oligarchic rule. In theory, we may have been presented with a democratic republic, but in reality, we are an oligarchy that is now straight-up fascist.
It will be interesting to see what else gets challenged in the coming debate on our First Amendment. While the Republican Utah Governor told us that accusing or “blaming others for political violence” is dangerous, Trump still insists that “The Left is the dangerous group where all the violence comes from.”
Of course, that is utter bullshit!
It’s rather apparent that Utah officials, mainly Republicans, have been coached on what to say and what not to say so they are aligned with Trump. They use the words “dark internet,” “Discord,” and “Reddit” as dark places where young people get radicalized. Neither young nor old people visit those two platforms to become “radicalized.” They are both discussion forums. If you belong to a radical organization like the Groypers, you may find a discussion forum on those platforms where like-minded individuals can chat with each other.
Anyway, as of this morning, only a handful of “news agencies” have mentioned Nick Fuentes and his Groyper army because they “hated Kirk for not being radicalized enough.” The assassin has ties to Fuentes and Groypers, but he also lives with a man who is transitioning to a woman.
Before the investigation into the truth of the Kirk’s assassination, many expect a frontal assault by Trump on the First Amendment. This will allow the corrupted SCOTUS to weigh in. The fascists want to restrict free speech, and Charlie may provide them with an opportunity to attack the leftists’ speech.
We shall see…
Sad, and enraging!
The question since the beginning of this year has been, can we wait until Election Day next year to end this travesty? That’s a year away. At this rate, the whole concept of the Republic could lie in ruins at our feet.
All three Branches are demonstrating a clear intent to shift from one of the greatest ideas of any century to a pure authoritarian oligarchy, ending our 250 year record of progress toward the high standards of the country’s founders.
Can we wait?
Does this mean that institutions of higher education can return to using race as a factor in admissions? The logical inconsistency of that gang of six is appalling.
The SCOTUS is openly complicit in Trump’s ongoing suppression of the rule of law and violations of the Constitution. The Court must be reformed from the ground up and it can only occur with successive victories at the ballot box in upcoming elections. And that reformation may only occur if our democracy can survive.
Where was the Rule of Law which would have/could have/should have forced Mitch McConnell to carry out the Duties and Responsibilities of his elected position and held the required hearings on the hundreds of Federal Judgeships AND the Supreme Court nominated, beginning with those of President Obama. The same question applies to the current sitting House and Senate members who remain mute and idle as democracy, Rule of Law and the Constitution are being run through the shredder?
“If this country survives as a constitutional democracy–no sure thing–the Roberts Court will take a shameful place in history alongside the January 6th insurgents.”
I’m sure those “glossies” Trump has are all personally signed and contain congratulations on his three presidential elections.
Howard Zinn said a lot! Black People didn’t seriously get rights- after 1865- Amendments gave them “freedom “ that lasted briefly. Richard and his daughter Leah- wrote much more in their 2023 follow-up to The Color of Law. Roe vs “freed” Middle Class Het White Women (only). Lawyers and The Law today necessitate (for a Change)- Serious Resistance from Advantaged white folks, especially Men- more than Nominally- Will we Elders follow the Leadership of Black Queer Women and our own GrandChildren- all over? History only matters if We learn much more quickly NOW! The 2026 Electiontime may be too late, obviously!
id have to say the people who are enforcing such mode, of snatch,hide deport,becomes a naritive of people who dont care,and dont follow the moral issue. how many ice from the past ranks have walked off and gave the finger to the new regiem? hard to imagine after the nazi white power trips, how many people(im not saying Americans anymore) didnt learn from past history,or are just too facinated by the free ink infuence. mental health is being ignored here also. obviously if the people cant recognize the issues,then we have bred a whole society that has ignored, what may come to them. this is a rich verses anyone else. otherwise, the rich would be holleran about it.ive read nothing to decide otherwise. instead its taken alot of time and influence and money by like minds to suceed in this turnaround. the techs are i believe are going to use ai for the final shove to find and ice the so called left, and loomer the outcome via net. the lefts voice is being shut off mainstream, and shumers gang a waste of time. now kirks demise is getting people censored and fired. thanks to social media, even your job is judged by what you think. better go to church on sat nite and sunday, that job required app for checking in everyday will no doubt be tracking your lifes where abouts. maybe even ais log to social media.
Sorry- Richard Rothstein
Pete: No, we can’t wait. The evil people that Todd keeps mentioning have been planning this for decades and know that now is their time and their only shot at getting their fetid operation in place. Clearly, these people have no compunction about destroying our democratic republic, the Constitution and the rule of law to justify their psychotic greed.
The 2026 election will not happen. Or if it actually is allowed, it will be so rigged as to make the outcome even more favorable to our destruction.
Sad, depressing, and enraging. You certainly help to make things more clear. Poor America.
Vernon–I agree with your assessment. We can’t wait and because the Right has been organized and on the same messaging for decades; I do not have alot of hope for the Democrat party to be able to get their shit together to counter this attack on democracy. The party elites are still not speaking at the level of alarm and urgency.
The only way I see things changing is in civil war–not sure what this looks like. I have been feeling for at least 15 years we as a country have been inching forward to what I was calling a ‘social’ civil war but with the recent steam rolling of every presumed guard rail–I see we are going to get more violent and yes ‘traditional media’–this is who we are we have always been a violent nation and now the average citizen has access to mass causality weapons.
Thank you, Sheila, for sharing of your hard-earned knowledge and clarity of what’s going on. Keeping the spotlight on the trump regimes corruption bolsters resistance against them.
trump and cohorts would love for US not to have an election next year and are taking steps (redistricting, restricting mail in votes, and requiring ID’s that cost and are time consuming to obtain etc.) to suppress the vote.
Also, trump is projecting an image that he’s a lot stronger than he actually is. The majority of Americans don’t agree with his authoritarian overreaches and oppose their sustainability.
I’m reminded by HCR’s talks of several times in US history where restrictive decisions by Supreme court (anti-democracy) have been overturned when we had a chance to take a breath and clear our perspective. Many in the judiciary are standing for the rule of law and showing trump’s unlawfulness by their rulings. Insisting on the enforcement of our laws is necessary. Maga movement gas lights Americans into thinking that we don’t have power and that were wrong. Nope not true.
Charlie Kirks killer was steeped in Republican middle class and gun loving values. He admired Groyper sentiment that was/is extremely pro white supremist. The right argues that he radicalized left by living with a transvestite. I know some gay people who are Maga that don’t want to associate with other races etc. I think it’s a really right sided thing to resort to guns to carry out grievances. This is another gas light propaganda campaign to blame others for their guilt.
Speaking of Charlie Kirk, the Nazi Republicans continue to stab democracy at every opportunity. First, Kirk was a media star or the Nazis. At the moment of his death, the other Nazis canonized him and now he is their martyr for the cause. And why does the news media continue to interview the Governor of Utah? It’s obvious that he is daily prejudicing any jury that will be selected to hear the case by discussing publicly the information and evidence that is available. He is characterizing the guy as gay who had a relationship w a trans sexual roommate. Relevance to his actions against Kirk? None. Prejudice. The traditional news media can’t help themselves – the advertisers love it, and the audience accepts it without complaint. We’re close to the end of our democracy.