RIP John Roberts’s Summer Vacation

At 1:15am early Saturday morning the Supreme Court, in just a few lines of text, did something that was both small and huge: It “directed” the government not to remove anyone detained in the Northern District of Texas (or, more specifically, “All noncitizens in custody in the Northern District of Texas who were, are, or will be subject to the March 2025 Presidential Proclamation entitled ‘Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua’ and/or its implementation”) from the country while further litigation about their status continued. The specific language of the Supreme Court’s order:

There is before the Court an application on behalf of a putative class of detainees seeking an injunction against their removal under the Alien Enemies Act. The matter is currently pending before the Fifth Circuit. Upon action by the Fifth Circuit, the Solicitor General is invited to file a response to the application before this Court as soon as possible. The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court. See 28 U. S. C. §1651(a).

Steve Vladeck and Chris Geidner have more detailed explanations of how we got here and what happens next in terms of all the related litigation, but the gist is that the Trump Administration keeps trying to disappear immigrants, to a concentration camp in El Salvador specifically, and with this “one cool trick” of invoking the Alien Enemies Act to somehow get the authority to pull this off, the rest of the Constitution and its demands for such things as due process be damned. Litigation to date has largely resulted in them being told to stop doing this, but not unequivocally enough for the Trump Administration to realize that “no means no” if it thinks there is any loophole to wriggle through that would allow them to continue. By Friday night, it looked like they were still about to load up planes to El Salvador, in this case from the Northern District of Texas where they apparently did not believe they were barred from sending people from, and lawyers for the people about to be shipped off to a foreign prison without meaningful due process were left desperately trying to get whatever court they could to stop it. It was only the Hail Mary to the Supreme Court’s “shadow docket” that overnight produced the emergency injunctive relief that was needed.

The good news is that the relief was provided. The bad news is that Justices Thomas and Alito disagreed with providing it, somehow failing to recognize the exigency of the situation, where people were in the process of being bussed to planes that only turned around once the Court issued its order. But the weirder news is that there is any of this news because everything about what the Court just did, and why it had to, is so unprecedented.

Of course, one reason why it’s so unprecedented is because of the unprecedented lawlessness by the Trump Administration, which has led to a flood of litigation inundating the courts and now increasing questions of contempt as it seeks to avoid complying with orders arising from those courts when it doesn’t like them. But another major reason is because of how the Supreme Court has effectively rewritten appellate procedure, which has now also resulted in a flood of litigation inundating the appeals courts as the Trump Administration keeps seeking review of so many of the district court orders it dislikes, even those that did not used to be appealable (a detail which the Supreme Court has now taught the appeals courts to themselves ignore).

And it is inundating not just the appeals courts but the Supreme Court itself, which has, in recent years, welcomed more and more appeals outside its normal path of selective review. Although the Court itself apparently hates the term “shadow docket,” and there has long been a mechanism for obtaining emergency relief—as the Friday night fiasco shows (despite what Justice Alito thinks), such exigent action may sometimes be needed—it used to be saved for true emergencies, where interests stood to be harmed before the underlying litigation could be fully resolved. Instead the Supreme Court has lately been allowing, and indeed encouraging, nearly every lower court ruling to be treated as an emergency and then delivering immediate and substantive results on still-pending litigation in almost every situation where a request on its shadow docket has asked it to act.

In a way, Justice Alito may have a point, where in his dissent he took issue with the loosey-goosey procedure the Court followed to generate its order.

In sum, literally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order. I refused to join the Court’s order because we had no good reason to think that, under the circumstances, issuing an order at midnight was necessary or appropriate.

Although he was grossly naïve to think it not appropriate here, it is not wrong to be concerned about the Court’s increasing proclivity to jump into matters prematurely (of course, given his own role in it, he may protest too much).

It is a problematic practice for a number of reasons. For one, it undermines the authority of the lower courts for the Supreme Court to constantly be micromanaging what may now effectively be pretty much each and every order they make. For another, this early interference in the progress of a case tends to prematurely produce decisions on the merits. Even where the Court isn’t actually making a formal, final ruling, the practical effect of its shadow docket responses is often sea-changing and dispositive, and sometimes in ways it seems the Court may not have anticipated (as perhaps was the case here, where it found itself now absolutely needing to step in). Worse, it is having this effect based on an incomplete record, which needs more time to develop at the lower courts before the case would ordinarily be ripe even for appellate, let alone Supreme Court, review. Instead, the Court’s officious intermeddling only slows down the process of building that record by constantly pressing pause on the underlying litigation in order to buy time for it to do its micromanaging review. And it wastes resources, keeping the district courts from being able to control their dockets and consuming extra lawyer time by now requiring them to brief at extra stages and in extra courts than they normally should have to.

But as the end of the current Supreme Court term and summer months approach, the Court may soon find itself ruing the day it established this practice. To be fair, just about every case involving the alleged misuse of power by the Trump Administration invokes some crucial constitutional issue, and many may legitimately end up before the Supreme Court—eventually. But if the Supreme Court cannot trust the lower courts to get their adjudication right, it will ultimately end up adjudicating all these cases itself, thereby drowning its own docket. But it won’t be overwhelmed just in terms of cases; if the Court is going to welcome so much interlocutory shadow docket review, it will be forced to spend attention on each and every decision made by each and every judge along the way, and at this point even if just to say no to it.

It is a lot of work to look over every judge’s shoulder in all these cases, and, worse, it will be work that often needs to happen quickly. As this case illustrates, with a Trump Administration that will take a mile when only a millimeter has been given, act as lawlessly as it can until it is explicitly stopped, and respect no other authority than the Supreme Court, it will fall to the Supreme Court to do all that stopping. For everything. And fast.

Which means it won’t just be this Friday night fire drill that this Court will be reckoning with. It has set the stage for everything the Trump Administration does to be an emergency, and not just with its shadow docket practices but by its previous decisions that have removed any of the legal friction that might have slowed the administration down. And not just with respect to Trump v. US (or Trump v. Anderson), but even in this matter.

Don’t forget that Judge Boasberg in the DC District Court tried to stop the AEA being used at all anywhere in the country, at least until it could be properly determined whether the Trump Administration had the authority it claimed to render any of these people abroad. But in response to the Trump Administration demand for shadow docket review the Court overruled Boasberg’s order and sua sponte, with little briefing, required the threatened expulsions to El Salvador to instead be challenged as habeas petitions wherever the detainees were. In other words, instead of allowing one challenge to have dealt with the same fundamental issue at the heart of each case—whether the AEA allowed any of what Trump was doing—the Court invited a proliferation of already multitudinous litigation to be spawned in multiple courts (assuming that each affected person could get counsel, and that counsel could even find their client and know where to sue), all of which may now soon land at the Court’s own door, along with all the other litigation that Trump’s lawless behavior has invited.

But the Trump Administration doesn’t take weekends off. These cases won’t take the summer off. They are going to demand attention, and fast, and every step on the way. “Cancel appointments, cancel vacations,” was not just an admonishment to the DOJ by a district court judge in Maryland seeking to do discovery on a related question of contempt by the Trump Administration; it’s an instruction for the nine justices at One First Street to get ready for what’s coming their way, and soon. Because if they’re going to weigh in on everything then they’re going to need to weigh in on everything.

And if needing to be on call to keep Trump from wrecking the country, or people’s lives, wrecks their summer plans, too bad. They only have themselves to blame.