Previous News Briefings have criticized how the Supreme Court uses the “shadow docket,” where it can simply issue verdicts without explaining or justifying them, to push Trump’s agenda. But an analysis by Stanford professor Adam Bonica shows just how extreme the Court is acting. Judges of both parties in lower courts have ruled against Trump’s executive orders in 82 of 87 cases—94% of the time. The Supreme Court, in contrast, has ruled for Trump 94% of the time. It’s like watching Tiger Woods—a once-in-a-lifetime swing.
This stat isn’t *quite* as bad as it looks. Lawsuits against Trump’s policies have been disproportionately filed in Democratic judicial districts, with plaintiffs “venue shopping” for a favorable court. (Just like how Republican challenges to Biden’s policies were disproportionately filed in Texas.) So it makes sense that lots of lower courts would rule against Trump. Plus, the Trump administration has not advanced all its losses to the Supreme Court (even they know some of these policies are, to use a legal term, duds.) But still, to quote Bonica, “District court judges, who see the evidence firsthand and hear directly from those affected, overwhelmingly find the administration’s actions unlawful…Then the Supreme Court—furthest from facts, closest to power—reverses almost automatically.”
Art by C.M. Duffy from Current Affairs Magazine Vol. 9, Issue 51
If anything, Bonica understates the difference between how district courts and the Supreme Court make decisions on Trump’s executive orders. Take Department of Homeland Security v D.V.D. as an example. This is the case where the Court ruled that DHS can deport people to countries they did not come from, regardless of whether deportees face the threat of torture in the “third-party countries” they are sent to. Aside from violating both human decency and the UN convention against torture, this ruling meant seven plaintiffs were immediately shipped to South Sudan, a country the State Department tantalizingly describes as full of “crime, kidnapping, and armed conflict.”
In D.V.D, the Supreme Court gave no written order justifying its decision. (Although Justice Sotomayor’s 19-page dissent shows the Court didn’t simply forget its Google Docs login.) Contrast John Robert’s blank page with what the lower court did before pausing the internationally-illegal deportations. The Court wrote 48 pages of analysis in issuing its initial order pausing third-party deportations, and issued two other decisions after learning that the Trump administration defied its initial order by deporting six men to South Sudan. Before coming to that decision, the district court judge heard oral argument and read hundreds of pages of filings. The Supreme Court undid thousands of hours of lawyers and judges’ work—not even including the work by the appeals court that heard the case before SCOTUS—and all without a single written word.
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