The Problem With the Supreme Court’s ‘Shadow Docket’
In May, the U.S. Supreme Court granted an emergency request by the Trump administration to allow President Donald Trump’s firing of National Labor Relations Board member Gywnne Wilcox to go into effect while Wilcox’s lawsuit against Trump played out in court.
Last week, the Supreme Court granted another emergency request by the Trump administration, this time allowing the firing of some 1,300 federal workers from the Department of Education to proceed while that lawsuit played out in court.
Can you identify the key difference between the two cases?
Each one seemed to affirm the same broad view of presidential control over federal agencies—yet only one of them actually said so. In the first case, Trump v. Wilcox, the Supreme Court issued an opinion that both explained its decision and offered a legal justification for it. But in the second case, McMahon v. New York, the Court offered no explanation at all. That case only said that Trump’s emergency request was granted and left it at that. (The same three justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, dissented in both cases.)
Why did the Supreme Court justify its order in one case while remaining silent in the other? The answer is that we simply don’t know because a majority of the Court has declined to say.
Critics have dubbed this uncertain legal terrain “the
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