Last week, in an unsigned order (LINDA MCMAHON, SECRETARY OF EDUCATION, ET AL. v. NEW YORK, ET AL.), the Republican-appointed majority on the Supreme Court swept away a district court ruling that had blocked mass firings in the Department of Education. The district judge had determined that the Trump administration intended to dismantle the department, though it lacked the authority to do so. The SCOTUS majority ruled — without a jot of explanation — that the firings may continue.
President Trump, consistent with Project 2025, has directed (by executive order) “the closure of the Department of Education.” Nineteen states (and other groups) filed suit to block the move, arguing that the action violated the Constitution and federal law. The Trump administration filed an emergency appeal; at least five of the Republican-appointed justices stayed the lower court’s decision (without deigning to say why).
Justice Sotomayor penned a 19-page dissent, joined by Justices Kagan and Jackson.
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. Two lower courts rose to the occasion, preliminarily enjoining the mass firings while the litigation remains ongoing. Rather than maintain the status quo, however, this Court now intervenes, lifting the injunction and permitting the Government to proceed with dismantling the Department. That decision is indefensible. It hands the Executive the power to repeal statutes by firing all those necessary to carry them out. 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.
Sotomayer observed that
the Government does not defend the lawfulness of its actions. Rather, in a now-familiar move, it presents a grab bag of jurisdictional and remedial arguments to support its bid for emergency relief. None justifies this Court’s intervention.
Her dissent concluded:
The President must take care that the laws are faithfully executed, not set out to dismantle them. That basic rule undergirds our Constitution’s separation of powers. Yet today, the majority rewards clear defiance of that core principle with emergency relief. Because I cannot condone such abuse of our equitable authority, I respectfully dissent.
Quinta Jurecic observed (the week before the McMahon decision came down):
A clear pattern has emerged in the extended back-and-forth over the legality of many Trump-administration actions. Donald Trump or a member of his Cabinet takes a certain step—say, firing an official protected from such removal, or destroying a government agency established by Congress, or seeking to ship a group of immigrants off to a country where they may be tortured or killed. Then, a lawsuit is quickly filed seeking to block the administration. A federal district judge grants the plaintiffs’ request, typically in an order that prevents Trump from moving forward while that judge weighs the underlying issue. An appeals court backs the district court’s decision. So far, so good for the plaintiffs. Then the administration takes the case to the Supreme Court—which hastily upends the lower courts’ orders and gives Trump the go-ahead to implement his plan.
On the day of the McMahon ruling, Steve Vladeck noted:
Since April 4, #SCOTUS has issued 15 rulings on 17 emergency applications filed by Trump (three birthright citizenship apps were consolidated).
It has granted relief to Trump … in all 15 rulings.
It has written majority opinions in only 3.
Today’s order is the 7th with no explanation *at all.*
In June, Professor Vladeck observed on One First:
My friend and University of Michigan law professor Leah Litman is responsible for two of the most memorable lines about the current Court: That it’s a “YOLO” Court (you only live once), and that its defining characteristic is “no law, just vibes.” It seems to me that events of the past few months have provided a heck of a lot of fodder for those who ascribe to Leah’s view—and some pretty troubling questions for those who continue to claim that this Court is driven by analytically coherent and politically neutral legal principles in its decisionmaking. Some readers may think this has been clear for some time; others may dispute whether it’s even true today.
I am among the readers who “think this has been clear for some time” — though I am not an attorney. I regard the pattern as discernible to anyone who follows American politics, while keeping one eye on the Roberts Court.
What’s wrong with this pattern? Justice Sotomayer’s dissent suggests why the Roberts Court decision to grant a stay is confounding. This was by no means an emergency. The district court had frozen the status quo; there was no compelling reason (before considering the case on the merits) to permit the firings to continue. Furthermore, the harm to the plaintiffs by staying the district court order far outweighed the harm to the federal government by keeping it in place. And, based on the constitutional separation of powers and settled law, there is no reason to suppose that the Trump administration would win the case on the merits (still being considered at the district court and ignored by the Roberts Court’s majority).
Furthermore, outrageously, the Roberts Court majority is mum about its reasoning, offering a single paragraph describing procedural matters, to clarify its decision. It offers no hint of a rationale, much less a legal principle to spell out its reasoning. There is no way for anyone — district judge, law professor, practicing attorney, American citizen or resident, or even a dissenting justice — to understand why (that is, on what legal basis) the court ruled as it did.
Partisan politics, not law
Fair-minded constitutional attorneys at law schools and public policy institutions focus on law, not politics. Vladeck and Jurecic are (perhaps impatiently) waiting for the court to offer an explanation of its actions (based on the Constitution, federal legislation, and judicial precedent) in a future decision. And so far in the first half of 2025, the Roberts Court is hiding the ball.
Let’s switch perspectives. In my view, it’s politics, not constitutional interpretation that best explains what the Roberts Court is up to. I’ve watched SCOTUS since before it became the Roberts Court. And, in my view, an understanding of American politics — and the dynamics of the contemporary Republican Party, which dominates all three branches of the federal government — not legal scholarship offers the most coherent, convincing explanation of the machinations of the current Supreme Court.
In short, I believe that in a range of partisan cases* the court’s majority (whatever it takes itself to be doing) is moved more by fidelity to the agenda of the Republican Party, than to any constitutional or legal principles.
*Most especially cases related to voting and elections (including campaigning, fund raising, and apportionment) and governing (especially as it relates to the authority of the three branches of government) — each of which provoke sharp partisan disagreement between Republicans and Democrats.
By ruling in favor of Trump and McMahon, SCOTUS assures that the dirty work will be complete by the time the district court reaches a decision on the merits. The Department of Education will be gutted. The Republican majority will endorse the decision in time. The Roberts Court is advancing the MAGA agenda — with virtually every shadow docket ruling. It is hiding the ball (the reasoning that it will eventually offer to underlie its decisions) for now, which has the advantage of keeping its options open. By withholding precepts or principles now, it will have a full toolkit to select from in the future.
It’s possible the Republican justices haven’t yet agreed on any specific rationale to put forward in McMahon; they simply agree on the result, which empowers Trump. They’ll construct their story later. For now, they are strategically keeping their powder dry.
Am I being too cynical?
Let me put it this way. For a number of years, even before the three Trump justices were in place, the most reliable way to predict SCOTUS decisions (in the range of partisan cases*)was to look at the policy preferences of the Republican justices, not at any purported approaches to interpreting the Constitution; not originalism, not textualism, not any consistent, coherent -ism embraced by the Federalist Society.
In a February post(at a time when observers were discussing whether or not the Roberts Court would put a stop to the Musk-DOGE rampage through the federal government), I predicted flatly that the Republican majority would not stop Trump. I appealed to the immunity decision, Trump v. United States:
It is preposterous to think that the Roberts Court, after giving Trump immunity from criminal prosecution — including for ordering the nation’s military to assassinate a political rival — would stand in the way of mass purges of civil servants and shuttering departments and agencies. That’s a nonstarter.
In addition, I noted a trump card held by the administration. At a time when many commentators were predicting that Chief Justice Roberts would assert the authority of the court and insist that Trump adhere to court orders, I disagreed. Roberts’ fear of having Trump defy the court (humiliating SCOTUS) would ensure that Roberts would not block any Trump action — without providing alternative means for Trump to do whatever he wished. (In other words, any purported block would be flimsy by design.)
In an April post, the day after the court issued a stay of a lower court ruling regarding due process for the Venezuelans deported to El Salvador (Trump v. J.G.G., decided 5-4, with the Republican men comprising the majority), I noted that in my previous prediction
I didn’t address arrests by masked agents, deportations to Salvadorian prisons, bad faith appeals to national security, or denial of due process. But I’m consistent: the Supreme Court will not protect us from this rampage either.
We’ll see, soon enough, whether or not I’m right. So far, nothing I’ve seen in the first six months of the second Trump administration has prompted me to change my view. I’ll conclude with an excerpt from a June post:
The Supreme Court, with its Republican supermajority, is prepared to do its part in the MAGA campaign. Success requires the three branches of the federal government to act in concert. The court’s Republican majority has consistently (more than nine times out of ten) sided with the Trump administration. It will continue to do so, above all in the most significant cases.
The Roberts Court is prepared to shrug off constitutional limits on the president, to override well established judicial principles, and to sabotage the rule of law itself on behalf of the wannabe strongman in the White House. It will not stand in the way of the Project 2025 crusade. It will not constrain Donald Trump.