Reining In A Rogue Supreme Court

Last July, in a 7–2 ruling, the Supreme Court ruled that Donald Trump’s claims of absolute presidential immunity were constitutional rubbish. The case involved two sets of subpoenas, one from Congress and one from Manhattan District Attorney Cyrus Vance, both of whom were seeking financial documents from the President’s bankers and accountants. In his concurring opinion, Chief Justice John Roberts trumpeted, “No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.”

Of course, despite the soaring rhetoric, the details of the decision turned out to exemplify the standard Roberts’ compromise, maintaining the constitutional principle while handing the Republicans a major political victory. While the Court’s ruling asserted that the President is not above the law, it actually sent the case back down to the lower courts so that Trump could contest the scope and relevance of the documents being subpoenaed. As W ill Stancil noted at the time, the Court’s reasoning ran thusly, “We’ve established the important principle that the president isn’t above the law, but that doesn’t mean he’ll need to comply with the law”. That ruling ensured that none of Trump’s financial records would become available before the 2020 election. That delay forced the House to abandon its subpoena, simply because the 116th session of Congress would end before the case could be resolved, thereby ending the validity of its subpoena.

DA Vance, however, carried forward with his investigation and won lower court rulings that validated the scope of the documents he was subpoenaing. After Trump lost his appeal in those matters in the Second Circuit Court of Appeals last October, Trump again made an emergency application to the Supreme Court to stay the enforcement of the subpoena, basically arguing another version of absolute immunity by claiming, “If the president’s records are disclosed publicly (as thus could happen even without a grand-jury breach), then the harm will not only be irreparable. It will be case-mooting”. Vance agreed to wait until the Supreme Court had ruled on that emergency application before he attempted to enforce his subpoena.

In the meantime, Vance has been ramping up his investigation of Trump. In recent days he has added a former federal prosecutor who is an expert on white collar crimes and subpoenaed the New York City Tax Commission for documents related to Trump’s commercial properties. And yet, four months after Trump’s request for an “emergency stay”, Vance is still waiting for the Supreme Court to even act on Trump’s request so that he can execute his original subpoena that was issued way back in August 2019.

This shouldn’t be a hard case for a legitimate Court. Trump is no longer president and, as an appellate court noted, “There is nothing to suggest that these are anything but run-of-the mill documents typically relevant to a grand jury investigation into possible financial or corporate misconduct”. With no word from the Court on the emergency stay request, Trump’s lawyers are preparing to ask the Court to hear oral arguments on the merits of the case before the 150 day limit to appeal a lower court’s decision expires. That process will add months to the case and, if the Court agrees to hear the case, it could be another year before a decision is reached. And it would essentially give Trump yet another bite at the apple, another chance to avoid the subpoena entirely, this time in a Court with a 6–3 conservative majority.

Meanwhile, because he agreed to wait for a Supreme Court ruling, it is Vance, not Trump, who is being harmed by this delay. As Joan Biskupic summarizes, “For nearly four months, the court has refused to act on emergency filings related to a Manhattan grand jury’s subpoena of Trump tax returns, effectively thwarting part of the investigation. The Supreme Court’s inaction marks an extraordinary departure from its usual practice of timely responses when the justices are asked to block a lower court decision on an emergency basis and has spurred questions about what is happening behind the scenes…The path the justices have taken — or, rather, not taken — has baffled lawyers following the case…All that’s evident is the justices have diverged from long-standing practice and hindered the investigation of a former president”.

Of course, this is by no means the first time that the Court has “diverged from long-standing practice” and shown unprecedented deference when it comes to Trump and his administration. In the 16 years preceding the Trump administration, the Supreme Court had only been asked for an emergency stay by the DOJ eight times, four times in the Bush administration and four times in the Obama administration. In the four years of the Trump administration, the DOJ came to the Court a remarkable 41 times for an emergency stay and the request was granted in full or in part an equally remarkable 28 times. As Justice Sotomayor pointed out in many of her bitter dissents, “A stay of a district court’s injunction is ‘extraordinary’…An applicant for a stay must meet a heavy burden of showing not only that the judgment of the lower court was erroneous on the merits, but also that the applicant will suffer irreparable injury if the judgment is not stayed pending his appeal”, adding, “It is hard to say what is more troubling, that the government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it…[T]he Court’s recent behavior on stay applications has benefited one litigant over all others”. That litigant was, of course, President Trump.

The Court’s unprecedented use of emergency stays and emergency orders is part of what Steve Vladeck has labeled the “shadow docket”. As Mark Joseph Stern describes it, “More and more often, the justices forgo the usual appeals procedure in favor of rushed decision-making behind closed doors in what’s known as ‘the shadow docket.’ They issue late-night opinions on the merits of a case without hearing arguments or receiving full briefing, and often refuse to reveal who authored the opinion, or even how each justice voted. The public is then left to guess why or how the law has changed and what reasoning the court has embraced. These emergency orders are supposed to be a rare exception; today, however, the court regularly uses them to make law in hugely controversial cases, including disputes over the border wall, COVID-19 restrictions, and executions…Shadow docket decisions are rushed and regularly unsigned. They disrupt the normal appeals process, allowing favored plaintiffs to leapfrog over lower courts to claim a quick victory at SCOTUS. They divide the court along partisan lines more often than normal decisions. They routinely give lower courts little to no guidance, forcing judges to guess what the majority is thinking. All of these features undermine public confidence in the court, which, in turn, threatens its legitimacy”.

The Court’s increasing use of the shadow docket not to just create “law on the ground” but to also actually decide the merits of a case with limited hearings or arguments has not escaped notice. Last week, the House Judiciary Committee held a hearing to investigate just what measures Congress could take to restrain the Court’s increasing use of these emergency orders. While not generally recognized and used even less, Congress does have remarkable power over the federal judiciary. Congress can tell the federal courts what cases they can hear and what cases they cannot. In fact, as recently as the 1990s, Congress stripped the power of federal courts to hear certain kinds of appeals from state prisoners, believing the federal courts were being too lenient. Congress had actually expanded the federal court’s ability to hear such appeals back in the 1960s.

The House hearing did not reach any firm conclusions, often worrying whether potential remedies would pass constitutional muster. But the hearing was surprisingly less polarized than one might think, with even Republican Louie Gohmert recommending that Justices be required to put their name on opinions, saying, “I am a fan of judges and justices making clear who is making decisions. I think Congress does have authority to require such a thing”. In addition, no Republican even defended the Court’s use of the shadow docket.

The most likely reform to come out of this process would be to force the Court to abide by the standard that they are continually and flagrantly violating today, namely that emergency relief should only be given if the party is likely to both suffer irreparable harm and win on the merits. Perhaps Congress may also require the Court to hear certain cases that Congress deems important, thus avoiding the situation where Trump managed to dodge a congressional subpoena simply by extending the case beyond the limit of the current congressional session.

In fact, as Stern notes, the hearing itself may have been the shot across the bow of the Court that will serve as a sufficient warning to the Court. As Democrat Zoe Lofgren admitted, some “guardrails” may need to be implemented to “protect the reputation of the court”. With Roberts, ever protective of his legacy in control of a 5–4 court, those words alone from a senior member of House majority might have been enough to restrain the Court. But, as the delay in the now straightforward Trump case seems to illustrate, the renegade, radical conservatives on the newly constituted 6–3 Court, not Roberts, are now in the ascendancy. It may take congressional action, such as imposing those guardrails, rather than words to rein in this rogue Supreme Court.

Originally published at on February 21, 2021.

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