Kate Shaw, a contributing Opinion writer, hosted a written online conversation with Will Baude, a law professor at the University of Chicago, and Stephen Vladeck, a law professor at Georgetown and the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” to debate how the Supreme Court is handling the pressures of the Trump administration and to discuss the end of the court’s term.
Kate Shaw: Let’s start with a big-picture question. How would you rate the Supreme Court this term? We’re all professors — give the court a grade. And Will, not one of those idiosyncratic University of Chicago grades — a letter grade we’ll all understand.
Will Baude: 180. That’s an A-, for those of you with less-scientific grading systems.
Shaw: OK, we’ll allow the number with that explanation.
Stephen Vladeck: I’m giving the court an “incomplete,” both because I suspect we’re going to get a lot more news (including some potentially major rulings on emergency applications) this summer and because the court’s work to date, especially in Trump-related cases, will be very difficult to judge without a bit of hindsight. Some of that is because the court has said so very little about the merits of any of the Trump administration initiatives that have come to it through emergency applications. Some of it’s because the impact of what the court has done (e.g., in the birthright citizenship cases) will depend a lot upon what happens next in the lower courts.
Shaw: I’m going with a C-. We haven’t hit bottom yet — the court could go lower — but the court’s performance was very, very poor.
Baude: Kate, what kind of a curve are you grading the court on? What would this court have to do that could even get it to the B+ range for you?
Shaw: Well, to Steve’s point, explaining itself in every significant case it decides would be a good start. As to the curve — I’m considering the court in the context of the rest of the federal judiciary, which has for the most part acquitted itself admirably over the course of the same time frame.
But I also suspect that part of the reason our assessments are so far apart is because of our very different reactions to Trump v. CASA, regarding nationwide injunctions and the president’s birthright citizenship executive order. That case really divided commentators: Takes ranged from outraged to enthusiastic, and there was a real range of views regarding how consequential the case will be. In a sentence or two, what did each of you make of Justice Amy Coney Barrett’s opinion for the court?
Vladeck: To my mind, there are plausible arguments against universal injunctions, some of which have been made by Will and Sam Bray. But it was the way that Justice Barrett’s opinion reins them in — without considering the state plaintiffs’ strong arguments that they needed a universal remedy to obtain “complete relief”; without explaining how the Trump administration could be irreparably harmed by an injunction against a policy that is patently unconstitutional — that I find so troubling.
Baude: On its own terms, Justice Barrett’s opinion is excellent. Sophisticated, careful, clear and correct. Giving the lower courts 30 days to sort out the “complete relief” issue (and bracketing the issue of state standing) was the right thing to do given how much the court already resolved.
Vladeck: But the court had other, less fraught opportunities to take up the universal injunction question as recently as January. Using this case to do it was, in my view, a serious mistake — and led the majority to what really comes across as outcome-driven analysis.
Baude: Yes, the biggest valid criticism is that the court should have issued this ruling earlier — during the Biden administration, during the Obama administration or even in the 2008 term, when the Bush administration teed it up in Summers v. Earth Island Institute.
Shaw: Will, what do you make of the argument that the court should have just decided the merits of the case now?
Baude: The court usually takes the cases as the parties present them, and that’s usually the better course. To be clear, I do think that the president’s birthright citizenship executive order is unlawful and that the court will agree, probably as soon as next term.
Vladeck: The court also doesn’t “usually” use emergency applications to resolve such significant questions affecting the relationship between the justices and the lower federal courts (and between the judiciary and the other branches of government).
Baude: Is that true anymore?
Vladeck: Of the 17 rulings we’ve had on Trump-related emergency applications, exactly one of them has said anything meaningful about the legal validity of the underlying executive-branch actions. Of course the court is doing more through emergency applications than ever before, but my point is that the notion that the justices were in any way constrained by the artificial way that the Trump administration narrowed the issues in the CASA case is not one I find especially persuasive.
Shaw: I also want to ask about the concurrence from Justice Brett Kavanaugh in CASA, which seems to pledge that the court will take a more active role in evaluating executive action, including on a preliminary basis. Does that concurrence broadcast even more activity on the “shadow docket” — a term Will coined and Steve literally wrote the book on? Steve, I assume that’s partly why you forecast a very busy summer.
Vladeck: Indeed. As I wrote about on Monday, Justice Kavanaugh’s concurrence is a bizarre combination of thoughtful and self-defeating. He’s right that the issue in all of these cases is whether there should be a “nationally uniform interim answer” to the validity of controversial actions by the executive branch (and if so, who should impose it). And he seems enthusiastic about having the Supreme Court itself provide that answer in more cases.
But that all came in an opinion concurring in a decision that didn’t provide such an answer (and may make it even harder for such a uniform answer to come about going forward). It’s not much of a theory if it’s going to be applied based on subjective criteria that the court didn’t even seem to follow in the case in which it was expounded.
Baude: I don’t share all of Justice Kavanaugh’s views about how to approach the emergency docket (I would prefer the court to leave more of these disputes to the legislatures and lower courts). But there’s no question that he understands the court’s institutional position and is one of the intellectual leaders in approaching these problems. I give him a lot of credit for that, and frankly I think some of his critics should give him more slack.
Vladeck: Of course, it would be nice if he would actually identify the critics with whom (and criticisms with which) he’s purporting to engage.
Shaw: Agreed! But let’s broaden the conversation. In general, how is the court faring in its dealings with the executive branch, in both its merits and shadow docket cases? (I’m looking for a topline assessment, and then we can dig in a little.)
Baude: About as well as we could realistically expect.
Vladeck: If we could only have realistically expected the court to do what it’s done to date, including granting emergency relief to the executive branch in two different cases in which the government defied lower court rulings, then we really are grading on a curve!
Baude: If we want to be formalists about it, the government has been pretty savvy about the vehicles it brings to the court and the way it litigates them (as we discussed, re: CASA). And if we want to be more realistic about it, even if you wanted the court to maximally stop the Trump administration, surely it would need to pick and choose its spots carefully. There’s just too much lawlessness to do otherwise.
Shaw: So the very volume of lawlessness means the court has to allow some of it to stand? I don’t buy that.
Vladeck: I certainly agree with Will about the court needing to pick and choose its spots. But it’s being more than a little too picky, in my view. Yes, the Justice Department has been very savvy about the cases it’s brought to the court, but the third-country removals case strikes me as a significant exception — and one where the court’s (entirely unexplained) grant of emergency relief gives at least the appearance of acquiescing in the government’s defiance of the district court.
Baude: But the court’s jurisdiction in that case was far from clear, and a case of serious jurisdictional infirmity is the last place I’d want the court to make a stand, strategically speaking.
Shaw: I do wonder at what point you’d agree the court should strike a more realist note with respect to the president. For instance, the administration has finally appealed one of the rulings against it in the case involving challenges to the E.O.s targeting law firms — in this case Perkins Coie. Does the court have to credit whatever explanation the Justice Department manufactures about the reasons for such an E.O.?
Baude: I agree that those law firm executive orders are obviously unconstitutional, though they do raise some hard questions of judicial review. When the court should toggle between “institutional formalism” and “institutional realism” is one of the big hard questions of public law, on which Rick Pildes has written more thoughtfully than anybody else I know.
Shaw: Yes! A great piece. And I read it to suggest that the court should more often peek inside the “black box” of institutional decision making — that is, engage in more institutional realism.
Baude: Maybe so. But if it does that for Republican presidents, we have to be prepared for it to do that to Democratic presidents, too. And I’m not sure everybody would be happy with the results.
Vladeck: As is often the case, Will provides a better rationale for the court’s intervention in the third-country removals case than the court itself did. But it seems to me that even if you think the jurisdictional issue is strongly on the government’s side in that case, you ought to say so — and make clear that you’re not endorsing the government’s abhorrent litigation behavior.
This, to me, highlights the cost of the court intervening so often in support of the Trump administration through unexplained orders. Indeed, in this case, the lack of explanation has already led the Justice Department to come back to the justices and ask them to “clarify” exactly which of the district court’s orders they stayed in their initial ruling.
Baude: I worry this is another case of unrealistic expectations. I just don’t think the court always knows, or agrees, why it’s doing what it’s doing. I’m sure you’ll say that reflects very poorly on them, but the volume of hard and fast-moving issues is just too much for them to write the kinds of opinions we law professors would want them to.
Vladeck: I don’t think that is what reflects poorly on them. And I’m not asking for 50-page opinions. The court found a way to write a 3.5-page opinion in the Alien Enemies Act case. It found a way to write a two-page order in the Wilcox case. I really don’t think it’s asking that much of the justices to provide even a modicum of explanation for the cases in which they are choosing to alter the status quo — especially, as has been true in so many of these cases, when there are lengthy opinions respecting the rulings by the lower courts.
Shaw: Trump v. Wilcox is the shadow-docket case in which the court allowed the president to fire heads of independent agencies and all but overruled the court’s 1935 opinion in Humphrey’s Executor. Will and I had very different takes in The Times on that order, but I’ll credit the majority for at least offering an explanation, albeit one I found less than persuasive.
Since we’ve essentially already debated the merits, I want to ask what you both made of the court’s unsupported assertion that the Federal Reserve is different, so that blessing the president’s firing of members of the National Labor Relations Board and Merit Systems Protection Board did not authorize the president to remove members of the Federal Reserve.
Baude: The court’s pragmatism is certainly showing in that passage, but I also think there are several formally plausible routes to get there — relying in part on scholarship about the distinctive nature of the Fed. And again I worry that the court’s critics are impossible to satisfy.
Vladeck: I guess I fail to see how one can be a fair-weather formalist. The unitary-executive theory is predicated on a remarkably formal view of the president’s relationship with any institution that exercises “executive” power. But a carve-out for the Fed that we all know is because the justices fear the effects of undermining the central bank’s independence seems to me to call quite a bit of the unitary-executive theory’s formalism into question.
Shaw: Will, your answer concedes that the court is sometimes willing to reason in pragmatic ways. What’s your best argument that the majority this term was principled and consistent in the methods it used to decide cases? To me it looks an awful lot like the court adverts to history when history produces an outcome it likes, and that it reasons pragmatically when history won’t get it there. It’s really hard for me to see genuine principle.
Baude: The current law — including the court’s discretion over what cases to take, discretion over emergency applications, discretion over when to overrule and limit precedent — gives the court a lot of discretion. I don’t like that, and I’ve argued that we should try to reform some of these things to be less discretionary, but I don’t think that makes the court unprincipled.
When I look at the court’s term as a whole, it seems pretty consistent. The court rejected some serious but radical challenges to the administrative state (such as in Braidwood and Consumers Research), exercised institutional formalism toward the Trump administration (which Kate criticizes) and was remarkably generous to claims of religious freedom (as in Mahmoud v. Taylor and Catholic Charities). It seems like a pretty consistent approach.
Vladeck: “Consistent” with the current preferences of the conservative legal establishment is not necessarily the consistency I took Kate to be asking about. We saw some real alarming moves to soften the rigor of judicial review in U.S. v. Skrmetti (with respect to claims of discrimination based upon transgender status) and in Free Speech Coalition (with regard to the standard for content-based restrictions on speech). And forgive me if I’m not holding my breath for the court’s “remarkably generous” approach to religious freedom claims in Mahmoud and Catholic Charities to be applied in a way that benefits all religions equally.
Shaw: Things seemed to get pretty heated at the end of the term; I’m thinking of the barbs traded between Justices Barrett and Jackson in CASA, Justice Jackson’s dissent in Diamond Alternative Energy and Justice Sotomayor’s dissent in Skrmetti. The justices have long prided themselves on working together in a collegial way, even when they disagree sharply and in contrast to other institutions of government. Do we think that’s still the case?
Vladeck: Nope. The justices are divided in much the same way as the country — with some of them viewing the current administration as an existential threat to our democracy and others viewing it as “what the people voted for.” That’s going to lead to a lot of talking past one another — and some fairly fundamental disagreements about the stakes of individual cases and of the Supreme Court’s broader relationship with other government institutions more generally.
Baude: I still believe. Especially when we compare the court to the way Congress and the executive branch are functioning today — grading on a curve, I know — their institutional norms are holding together remarkably well. It’s the Supreme Court commentariat I worry about!
Vladeck: I certainly have been unsparing in some of my criticisms of the court. But I guess that betrays my worldview as thinking that these are unprecedented times — and that the justices should (and we need them to) aspire to more than just being “not as bad as everybody else.”
Shaw: Ditto. For me it’s precisely because at its best, the court plays such a vital role in our constitutional scheme — in particular at a moment when that scheme is under such strain from the executive — that it seems critical to call it out when it falls short.
OK, final question. The court used to alternate very big terms and quieter terms. This one was a little hard to classify. Still, if you take into account what the court did, it was an unquestionably consequential term. Any predictions for what next term might look like?
Baude: At this point, so much depends on what the Trump administration does — the court seems to be following rather than leading in terms of its docket. But I wouldn’t be surprised if the court has to tackle birthright citizenship, further defiance of immigration orders, the legality of the tariffs and the political retaliation against law firms and universities, maybe all in the same term.
Vladeck: I’m not even confident about what the rest of this term will look like — with three months to go and, at this rate, likely another dozen or so major emergency applications to resolve before the First Monday in October. But I agree with Will that the underlying merits questions presented in the cases that have already reached the court through emergency applications aren’t going away.
That’s a lesson for the court, too — that, insofar as some of its behavior this term can be explained as an effort to kick things down the road and avoid unnecessary confrontations with the executive branch, that bill is going to come due, and soon.
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William Baude is a professor at the University of Chicago Law School and a host of the “Divided Argument” podcast.
Stephen I. Vladeck, a professor of law at Georgetown, writes the One First weekly Supreme Court newsletter and is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”
Kate Shaw is a contributing Opinion writer, a professor of law at the University of Pennsylvania Carey Law School and a host of the Supreme Court podcast “Strict Scrutiny.” She served as a law clerk to Justice John Paul Stevens and Judge Richard Posner.
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