Once again, the Supreme Court has issued an extreme ruling, this time upholding President Trump’s right to order mass firings of government employees, in plain violation of Congress’s authority. And once again, the Court relied on the so-called shadow docket, issuing an emergency procedure staying lower-court injunctions, allowing the justices to duck coming to terms with the underlying constitutional question of separation of powers.
On February 11, Trump issued an executive order seeking to reduce the size of the federal government through so-called reductions in force. This prompted a lawsuit by a broad coalition of unions, nonprofits, and local governments.
Federal judge Susan Illston, a Clinton appointee, sided with the plaintiffs and ordered a temporary pause in the mass layoffs pending an authoritative Supreme Court decision on the merits. “As history demonstrates, the President may broadly restructure federal agencies only when authorized by Congress,” Illston wrote.
The administration immediately appealed. On June 2, a three-judge panel from the Ninth Circuit upheld Judge Illston’s ruling. The administration then sought an emergency stay from the Supreme Court.
Tuesday’s high court ruling lifting the lower-court injunctions was the logical corollary to the high court’s June 27 procedural ruling in Trump v. CASA, holding that district court injunctions may not be applied nationwide. But that case, like this one, continues the Supreme Court’s cowardly gambit of using emergency stays and procedural gimmicks to duck addressing the underlying constitutional issues.
In Trump v. CASA, the deeper issue that the Court sidestepped was birthright citizenship. As Justice Sonia Sotomayor wrote in dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, “The gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along.”
So while the Supreme Court kicks the constitutional can down the road, Trump’s slide to full-on dictatorship intensifies. This consequence cannot have eluded the Court majority.
Except for emergency stays, the Court is out of session for the summer and will not issue definitive rulings until fall, if then. So the Court keeps the appearance of its virtue, a sham that everyone else sees through.
Once Trump v. CASA was the law of the land, Justices Sotomayor and Kagan, as good proceduralists and respecters of precedent, fell in line on the latest case. They voted with the Trump majority to overturn lower-court injunctions against Trump’s plainly illegal firings. The decision was 8-1.
It fell to Justice Ketanji Brown Jackson to speak truth to power. She wrote in lone dissent:
Given the fact-based nature of the issue in this case and the many serious harms that result from allowing the President to dramatically reconfigure the Federal Government, it was eminently reasonable for the District Court to maintain the status quo while the courts evaluate the lawfulness of the President’s executive action. At bottom, this case is about whether that action amounts to a structural overhaul that usurps Congress’s policymaking prerogatives—and it is hard to imagine deciding that question in any meaningful way after those changes have happened. Yet, for some reason, this Court sees fit to step in now and release the President’s wrecking ball at the outset of this litigation. In my view, this decision is not only truly unfortunate but also hubristic and senseless.