Trump winning the battle at SCOTUS through the shadow docket

 Excerpts from an podcast interview by Ezra Klein and Kate Shaw, posted on The New York Times:

The Supreme Court has since weighed in a number of times. Where are we now?

I think things look worse for the rule of law and better for Trump’s dictatorial aspirations now than they did three or four months ago.

So I think it’s right that in the first couple of months of the administration, Trump was making these wildly broad assertions of executive authority and executive orders and other kinds of actions, and he was running into the kind of buzz saw of the lower courts applying settled doctrine, reading the Constitution and statutes, and saying: No, you can’t do that. That’s not how any of this works.

That is still ongoing. But beginning in about April, the Supreme Court started to get into the mix. In a series of rulings — actually 16 in a row — the Supreme Court has sided with Trump and against challenges to Trump and against lower courts that have ruled against Trump, in this wild streak of victories for Trump that have largely happened under the radar because they’re happening on the shadow docket.

Can you say what the shadow docket is?

Sure. People are most familiar with the Supreme Court’s work on what we call the merits docket. Those are cases the court decides it’s going to take. There are briefs filed, oral arguments, and then the court writes and releases written opinions, usually, like the big ones, at the end of June. That’s the merits docket.

The court also does a lot of work on what we call the shadow docket. Some of that is pretty trivial stuff — how much time people are going to get in oral arguments and things like that.

But increasingly, parties have come to the Supreme Court asking for emergency relief, usually because they’ve been ruled against by the lower courts. And the court, often in the dead of night, often without any reasoning or written opinion at all, disposes of these requests for emergency relief.

That’s this kind of streak of victories that Trump has had, ruling after ruling in favor of Trump, allowing him to do a lot of, I think, wildly damaging and destructive things, even though the only written opinion assessing the lawfulness of his conduct has come from the lower courts and has been against him.

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