"The Supreme Court Is Not Cowering Before Trump on the Shadow Docket"

A very interesting analysis at Executive Functions by Prof. Jack Goldsmith (Harvard), a leading scholar of executive power and of the separation of powers; an excerpt, though you should read the whole thing:

I have heard from a few people in recent days who think the Supreme Court is cowering before the Trump administration or, at least, is not adequately standing up to it.

Adam Liptak gave voice to a version of this view a few days ago. In contrast to the Court’s “signature . . . sweeping claims about the meaning of the Constitution,” he argued, the Court in the Trump cases has been issuing “a series of narrow and legalistic rulings that seem calculated to avoid the larger issues presented by a president rapidly working to expand power and reshape government.” Liptak said this “new approach” was designed in part “to avoid a showdown with a president who has relentlessly challenged the legitimacy of the courts.”

Liptak’s stance is a little hard to understand. The cited cases with “sweeping claims”—on abortion, affirmative action, the Second Amendment, and the like—were decided on the Court’s merits docket. But the Trump cases have occurred on the emergency orders or “shadow” docket where, as Liptak acknowledges, the Court must move quickly, with impoverished briefing and process, to “decide whether to pause lower court rulings, themselves preliminary and tentative.” In this context, he correctly says, it is “understandable … that the justices may be reluctant to make grand pronouncements.”

I am not sure how to square these views, but I agree with this last point, and will flesh it out below. The Court as of this posting has issued six emergency orders on Trump 2.0 actions, including last night’s order in Noem v. Garcia. It is too early to know whether the Court is acting wisely on its emergency docket. Yet thus far it has neither bowed to the president nor proceeded in an untoward way.

The post “The Supreme Court Is Not Cowering Before Trump on the Shadow Docket” appeared first on Reason.com.