The Supreme Court has stopped doing a core part of its job in its rush to greenlight a huge number of President Donald Trump's most controversial policies, The New York Times editorial board wrote in a scathing analysis published on Monday.
In recent weeks, the court has summarily used "emergency" rulings to lift a variety of lower-court pauses on Trump policies ranging from firing federal Democratic regulators with no cause, to dismantling the Department of Education. These rulings don't outright declare Trump's actions legal, but effectively say he can go ahead with these things while lower-court cases play out to decide whether they are legal — and they almost never sign these rulings or provide any explanation for them.
"Federal judges are not elected by the public. Nor are they supposed to make decisions based on their ideological preferences," wrote the editorial board. Because of that, "The credibility of judges depends on their ability to offer public explanation for the legal basis of their decisions. When judges show their work, the public can assess it by the standards the judiciary sets for itself — reasoning grounded in law and judicial precedent. Without that, judges risk their legitimacy. Clear explanation is especially important for the Supreme Court, which sets national rules that lower courts must follow."
But by relying on the so-called "shadow docket" every time they rule in favor of Trump, the board wrote, the justices are undermining their credibility with the public, creating confusion for lower courts, and at a more fundamental level, "ducking one of their crucial responsibilities: making persuasive arguments with which we can all engage."
The liberal wing of the Supreme Court has taken notice of this trend, with those justices outright calling out their colleagues in dissents for their parade of unexplained rulings removing restraints from Trump.
Emergency rulings, while critical for things like preventing unlawful executions and other irreversible harms, used to be a relatively rare process, with presidents George W. Bush and Barack Obama only asking for a combined eight of them.
"Mr. Trump’s administration has been much more aggressive about seeking emergency relief for a worrisome reason: He has enacted many legally dubious policies that lower-court judges have blocked, on a strikingly bipartisan basis," wrote the board. "His lawyers have then selectively rushed to the Supreme Court, asking the justices to overturn certain rulings and allow the policies to go into effect."
If the Supreme Court wants to preserve public trust in the courts, at a time when Trump is himself trying to browbeat judges with threats and insults, wrote the board, they need to stop accepting every emergency application that comes before them, and when they do accept one, explain to the public why they're doing it.
"They should take the time to explain themselves clearly enough to guide the lower courts, give the rest of us a rationale and distinguish judicial power from political power," the board concluded. "Most of all, the court should think about how its work can bolster the separation of powers to assure the future of American democracy. That is its ultimate responsibility."