Donald Trump’s constant boundary-pushing and seemingly unlawful, policy initiatives have created a previously unheard of schism between the lower courts and the Supreme Court, which has according to some experts has been giving him the benefit of the doubt through the use of the so-called “shadow docket.”
Trump appears to be testing how far he can go after the conservative-dominated court not only granted him blanket immunity, but has also come down on the side of the fringe legal theory of a unitary executive with almost unlimited powers.
The Wall Street Journal’s Lydia Wheeler is reporting the nation's highest court has been issuing, by and large, pro-Trump rulings and stays in critical matters without any legal underpinnings or explanations. That has created a growing civil war with lower court judges who are becoming more vocal about their exasperation and inability to resolve disputes.
According to the Journal, in a mere 8 months Trump's lawyers have filed for emergency interventions 28 times after suffering a defeat at the lower court level, adding, “That is more than the administrations of Joe Biden, Barack Obama and George W. Bush combined.”
According to Georgetown Law Professor Stephen Vladeck, the sheer volume combined with the nature of the rulings so far has put the legal system in a state of stress.
“It is unprecedented as a matter of the nationwide significance of the questions that are being rushed to the court,” he explained. “And it is provoking an unprecedented degree of discord between the justices and their colleagues on the lower federal courts.”
“Justices across the ideological spectrum have lamented the skyrocketing growth of their emergency docket, which is sometimes referred to as the shadow docket because the court considers emergency appeals with minimal briefing and often without oral arguments,” Wheeler wrote.
That has led to pushback, with a three-judge panel in San Francisco writing last month, “We can only guess as to the court’s rationale when it provides none.”
United States Court of Appeals for the Fourth Circuit Judge James Wynn was a bit more to the point stating, “I’m not criticizing the justices, I’m just saying they’re using a vehicle that’s there, but they’re telling us nothing.”
Supreme Court Justices Neil Gorsuch and Brett Kavanaugh have taken exception to the criticism, with Gorsuch recently writing, “Whatever their own views, judges are duty-bound to respect the hierarchy of the federal court system.”
U.S. District Judge Allison Burroughs called the rebuke “unhelpful and unnecessary” and lamented the bind judges are being put in when “... they are working to find the right answer in a rapidly evolving doctrinal landscape, where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.”
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