It is quite the bit, really, to spend decades insisting on your “originalist” and “textualist” bonafides, and then when dealt an essentially unbeatable hand simply decide over and over again that that “original” “text” actually means whatever the hell you want it to mean. Or, perhaps more accurately, that the text you supposedly revere simply does not matter, or simply does not exist. I imagine the six conservative Supreme Court Justices sleep as well as anyone in the country.
The new ruling was unsigned, and came with no decision explaining the conservatives’ reasoning, such as it may be. This isn’t necessarily unusual for rulings like this, but it does highlight the ruling party’s increasing disdain for the pretenses that generally have been upheld in centuries of Washington’s procedural wranglings — and one might think that literally undoing the Constitution might require some explanation, if the Justices maintained some tiny modicum of shame. Alas.
What shame or adherence to norms they maintained in years prior seems to have evaporated into the heady fumes above a tripartite Republican government. As Georgetown Law professor and court watcher Steve Vladeck pointed out on Bluesky, the Court has issued 15 rulings on emergency applications filed by the Trump administration since early April, and ruled in his favor in all 15 of them. Majority opinions explaining the rulings have emerged, one must assume reluctantly and covered in the sort of mucus-like slime that protects such blatantly illogical decisions from the outside world, in only three of them.
“This reeks of illegitimacy,” said Mark Joseph Stern, another court watcher and senior writer for Slate, again on Bluesky. “The Supreme Court derives its power from its legitimacy. It earns its legitimacy by explaining its decisions.”
The unexplained ruling stems from a Trump executive order instructing Secretary of Education Linda McMahon to start dismantling her Department, which was created by statute in 1979. It follows another SCOTUS decision a week ago that more broadly would allow mass firings to move forward across the government; the plan at the DOE is to fire so many people that it would essentially cease to function.
“When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it,” wrote Justice Sonia Sotomayor, joined by the other two liberals on the Court, in the increasingly futile tradition of the Withering Dissent. Calling the conservatives’ decision “indefensible,” she wrote that it functionally allows the president to repeal laws passed by Congress by firing the people who would carry out those laws. “The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave.”
This could be understood as problematic even for Republicans in the future, if the next Democratic president decided to, say, fire every ICE agent on the day they took office. (This idea does sort of ignore how it would immediately create a heavily armed mass of some of the most psychopathically cruel and angry people in the country, but the root point is a reasonable one.) But that assumes the Justices aren’t convinced that through various of their own and others’ fascist machinations such a scenario — a Democratic winning a national election — isn’t getting less and less likely. Also, as many have pointed out, these shadow docket rulings generally avoid offering a decision on the merits of a case and instead just grant procedural stays or relief, allowing them to make the obvious and logically and legally incoherent about-face that a Democrat in the Oval Office tends to produce.
From afar, it sure looks like six Bribery Wizards have internalized the currently unassailable truth that there is no check on their ability to grant this particular president essentially unlimited power. Who is coming to stop them? Congress? The legislative body that appears to be almost entirely on board with ceding its Constitutional power to a man who could not tell you what the Department of Education actually does if he was given thirty tries and the Department’s “About” pages printed out in 60-point font?
The administration’s stated intent to close the DOE, according to Sotomayor, will “unleash untold harm” in terms of denied educational opportunities, discriminatory practices, sexual assault, and other civil rights violations. “The majority apparently deems it more important to free the Government from paying employees it had no right to fire than to avert these very real harms.” Why pretend otherwise, they also appear to “deem,” when not pretending is this easy?
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