The Supreme Court’s shadow docket has become a lawless mess. The justices are issuing extremely consequential rulings with either no explanation at all, or with barely a paragraph of reasoning. No full briefing. No oral arguments. Just vibes-based constitutional law that lower courts are somehow supposed to follow.
Now the Court has made this chaos worse by essentially telling lower courts to treat these half-baked emergency rulings as more important than actual binding precedent.
If you’re a district court judge, what do you do? Follow the actual binding precedent, or guess at what the Supreme Court’s vibes-based constitutional law might mean?
Earlier this week, we wrote about a district court judge who faced this impossible situation. She was bound by the Supreme Court’s 1935 precedent in Humphrey’s Executor, which clearly states that Presidents cannot fire the heads of independent agencies like FTC Commissioners (in Humphrey’s it’s literally about the firing of an FTC Commissioner). That’s still good law—the Court has never officially overturned it.
But Trump fired FTC commissioners anyway, creating the exact same legal question that Humphrey’s already answered. Recent Supreme Court rulings have suggested the Court might be willing to gut independent agencies, but without actually overturning the controlling precedent. The judge did what judges are supposed to do: follow binding precedent until the Supreme Court clearly overrules it.
Yesterday’s ruling in a separate case makes this impossible situation even worse. The Supreme Court issued another barely-explained shadow docket ruling that essentially scolds lower courts for following actual precedent instead of reading the tea leaves of emergency orders.
The case, Trump v. Boyle, involves Trump’s firing of Consumer Product Safety Commission (CPSC) commissioners. This follows a similar shadow docket ruling in May about the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB). In all these cases, lower courts applied existing law and ruled that the President lacks the power to fire these officials.
Rather than take up these cases properly with full briefing and oral arguments, the Supreme Court just waves its hand and declares that agencies like the CPSC and NLRB “aren’t really independent” because some of their functions involve executive power. Therefore, Trump can fire them.
There might be reasonable constitutional arguments for this position. We’ll never know, because the Court is making these determinations without bothering to hear them. The May ruling essentially said: “We haven’t really looked into this, but we’re pretty sure we’d side with Trump if we did.”
It’s constitutional law by vibes, and it leaves lower courts in an impossible position.
On one hand: Humphrey’s Executor, a clear binding precedent. On the other: Wilcox, a half-baked shadow docket ruling that essentially says “trust us, we’d probably overturn this if we bothered to think about it.”
In yesterday’s CPSC case, the Court’s two-paragraph ruling is openly dismissive of lower courts trying to follow actual law. The tone essentially asks: “Why aren’t you treating our unexplained emergency order as more important than binding precedent?”
Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases. The stay we issued in Wilcox reflected “our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.” Ibid. (slip op., at 1). The same is true on the facts presented here, where the Consumer Product Safety Commission exercises executive power in a similar manner as the National Labor Relations Board, and the case does not otherwise differ from Wilcox in any pertinent respect.
Even Justice Kavanaugh—who clearly wants to gut independent agencies—thinks this process is bonkers. In his concurrence, he essentially says: “Look, if we’re going to overturn major precedents, maybe we should actually, you know, hear arguments about it?”
When an emergency application turns on whether this Court will narrow or overrule a precedent, and there is at least a fair prospect (not certainty, but at least some reasonable prospect) that we will do so, the better practice often may be to both grant a stay and grant certiorari before judgment.
Kavanaugh gets the core problem: You can’t run a legal system on winks and nudges. Either Humphrey’s is good law or it isn’t. Either Presidents can fire independent commissioners or they can’t. You can’t just leave everyone guessing.
In those unusual circumstances, if we grant a stay but do not also grant certiorari before judgment, we may leave the lower courts and affected parties with extended uncertainty and confusion about the status of the precedent in question. Moreover, when the question is whether to narrow or overrule one of this Court’s precedents rather than how to resolve an open or disputed question of federal law, further percolation in the lower courts is not particularly useful because lower courts cannot alter or overrule this Court’s precedents. In that situation, the downsides of delay in definitively resolving the status of the precedent sometimes tend to outweigh the benefits of further lower-court consideration.
He’s absolutely right. The Court is playing hide the ball with constitutional law, creating chaos in the lower courts while giving Trump a free pass to ignore congressional statutes.
Justice Kagan’s dissent (joined by Sotomayor and Jackson) cuts to the constitutional heart of the problem: this approach obliterates separation of powers.
The system is supposed to work like this: Congress writes the laws, the President faithfully executes them, and the judiciary determines whether both the laws and the President’s actions are constitutional.
Here, the Court is effectively eliminating two of the three branches (including itself!). Congress deliberately created these agencies as independent to insulate them from political pressure. The Court is saying that doesn’t matter—the President can ignore what Congress wrote. And by doing this through unexplained shadow docket rulings, the judiciary is sawing off its own constitutional branch.
The message is clear: the President can ignore congressional statutes, and we’ll rubber-stamp it without analysis, explanation, or precedential guidance.
That’s not separation of powers. That’s monarchy with judicial blessing.
Here’s Kagan:
In Congress’s view, that structure would better enable the CPSC to achieve its mission—ensuring the safety of consumer products, from toys to appliances—than would a single-party agency under the full control of a single President. The CPSC has thus operated as an independent agency for many decades, as the NLRB and MSPB also did. But this year, on its emergency docket, the majority has rescinded that status. By allowing the President to remove Commissioners for no reason other than their party affiliation, the majority has negated Congress’s choice of agency bipartisanship and independence.
More damning is Kagan’s critique of the Court’s circular reasoning:
And it has accomplished those ends with the scantiest of explanations. The majority’s sole professed basis for today’s stay order is its prior stay order in Wilcox. But Wilcox itself was minimally (and, as I have previously shown, poorly) explained. See 605 U. S., at – (KAGAN, J., dissenting) (slip op., at 4–7). It contained one sentence (ignored today) hinting at but not deciding the likelihood of success on the merits, plus two more respecting the “balance [of] the equities.” Id., at – (order) (slip op., at 1–2); see id., at __– ___ (KAGAN, J., dissenting) (slip op., at 4–7). So only another under-reasoned emergency order undergirds today’s. Next time, though, the majority will have two (if still under-reasoned) orders to cite. “Truly, this is ‘turtles all the way down.’”_
“Turtles all the way down”—that’s what constitutional law looks like when the Supreme Court abandons its responsibility to explain its reasoning. Each unexplained shadow docket ruling becomes precedent for the next unexplained shadow docket ruling, creating an infinite regression of constitutional nonsense.
This isn’t just bad legal process—it’s the systematic destruction of constitutional government. Instead of three coequal branches with checks and balances, we’re getting an imperial presidency, a neutered Congress, and a Supreme Court that has transformed from constitutional interpreter to Trump’s enabler.
The Court’s shadow docket has become the constitutional equivalent of “because we said so.” That’s not law. That’s authoritarianism with footnotes. And sometimes even the footnotes are missing.