The Supreme Court wrapped up its term last Friday — except it didn't.
Yes, the justices are by now heading for the beach, the golf course, or for some summer teaching gig abroad. But like it or not, they will still be working on a steady diet of emergency appeals from the Trump administration, or from immigrants being detained or deported by the administration, and much more.
That said, on the last day that the justices were in court, the conservative supermajority took unprecedented steps to strip the lower courts of the tool they have used most often to thwart Trump's aggressive agenda on everything from the independence of government agencies and employees, to immigration and the elimination, without congressional authorization, of important government agencies.
At the same time the Supreme Court was blocking much of what the lower courts have done, the high court gave itself, and only itself, the power to block most executive orders from the president.
Indeed, Trump, for now at least, has succeeded in changing the very nature of the court's work. The justices produced just 56 opinions this term in cases that had been briefed and argued. That's the lowest number since the 1930's. But in the five months since President Trump took office, the court, with only the rarest exception, has repeatedly granted his wishes to accrue power to the presidency.
A busy term on the "shadow docket"
The bulk of that work, however, has been on the so-called "shadow docket," formally known as the "emergency docket," which used to be primarily for last minute death penalty appeals. Today the death penalty appeals are still there, but they almost always fail, while Trump's emergency appeals almost always win without the court having full briefing or arguments, without any signed opinion fully explaining the court's reasoning, often without any explanation whatsoever, and almost always without any way to definitively know who voted in the majority.
"What's striking about these cases" is that the court is almost never writing opinions that explain what it is doing, says Georgetown University law professor Stephen Vladeck. But the decisions are nonetheless "massively impactful ... letting the administration continue to carry out initiatives that many think are lawless, while not necessarily settling the legality one way or the other."
At the same time, Vladeck observes, the court is "preserving the justices' power at some unknown future point, if they want to, to step back in and say, actually this policy, this program, this firing, was illegal." Practically speaking, though, Vladeck says it likely will be too late to do anything about it by then.
The court, however, did step in, quite aggressively to bar the administration from deporting immigrants without giving them adequate time to challenge their deportations in court. Those orders were quite literally at the last moment before deportation, and came in the middle of the night, sending the cases back to district court judges to deal with but without explanation as to how to do that.
In other immigration cases, however, the court, again in an unsigned and brief order, allowed the administration to lift existing protections for hundreds of thousands of immigrants from Venezuela, Haiti, Cuba, Nicaragua and other countries.
With all the criticism the court is getting for its decision on nationwide injunctions, it has also gotten some support from lawyers who served in the Obama and Biden administrations because they too found almost all of the president's executive orders barred by lower court judges, particularly in Texas.
As Notre Dame law professor Samuel Bray observes, nationwide injunctions are relatively new, really blossoming in the 21st century, and leading to overt judge-shopping, meaning that a litigant looks for a sympathetic judge and files his case there, knowing what the outcome will be. The phenomenon has been particularly evident in parts of Texas, where judges are not randomly assigned to cases, so that a litigant can be sure who the judge will be.
Some of the same issues could crop up again with the alternative paths the Supreme Court left open to stop a policy nationwide. Already class actions have been filed to challenge Trump's birthright citizenship executive order, and the court said that states too can seek nationwide remedies for policies — such as Trump's attempt to limit birthright citizenship.
The author of the decision barring the federal district courts from issuing nationwide injunctions was not one of the court's more senior members. Rather Chief Justice John Roberts chose the second most junior justice to write the opinion, Justice Amy Coney Barrett, who has proven to be a disciplined writer, able to hold on to a majority. Ironically, right wing critics have assailed her for not being conservative enough, and she has faced some scary threats as a result. But this term, anyway, she proved herself to be a skilled stalwart on the conservative side of the bench.
Other notable cases
The court, of course, had lots of other consequential decisions this term in cases that were fully briefed, argued and decided. It revived a Bureau of Alcohol, Tobacco, Firearms and Explosives regulation of unmarked and untraceable "ghost guns," that can be put together from a kit in a matter of minutes. Until the ATF enacted the regulation, these kits could be bought online without any background check, and without presenting identification.
The conservative court also reversed nine of the 12 decisions it reviewed from the Fifth Circuit Court of Appeals, widely viewed as the most conservative appeals court in the country, illustrating that there are courts more conservative than the current Supreme Court. In addition to the ghost gun case, justices reversed a Fifth Circuit decision that for a third time sought to gut a major part of the Affordable Care Act.
There were also a number of big wins this term in cases involving religious rights. The conservative court majority required public schools to provide an opt out from elementary school classes when the lesson includes material that parents find contrary to their religious beliefs. And in a case involving Catholic Charities, the court said that the state of Wisconsin violated the constitution by refusing to give a Catholic social ministry organization the same exemption from paying state unemployment taxes as it gives to churches. Justice Sonia Sotomayor, the court's senior liberal justice, wrote the opinion for a unanimous court.
The liberal justices, however, dissented when the court upheld state laws that ban gender-affirming care for minors. Roughly half the states have such laws, and the decision is likely to lead to more efforts to limit trans students in other areas, like sports.
There was no abortion case on the docket this term. But states that have a long history of opposition to abortion, won an important victory when the court, after years of resisting the question, ruled that states may deny Medicaid reimbursements to Planned Parenthood, although it is a qualified provider for a variety of non-abortion medical services.
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