Supreme Cruelty.
On Friday, major policy and constitutional decisions were once again being decided on the Supreme Court’s “shadow docket” after 9:30 p.m., without argument, briefing, or explanation from the Court. That is no way to run a democracy.
But the Trump administration has come to view the Supreme Court as its judicial backstop, a reliable ally willing to uphold cruel and blatantly unconstitutional actions on an emergency basis, in the literal dark of the night.
For the most part, the Supreme Court has matched the cruelty of the Trump administration in lockstep, upholding nearly every effort to punish perceived enemies—social, cultural, and political—by wielding the power of the executive to inflict pain, deny benefits, and curtail liberties. If “cruelty is the point” for Trump, the Supreme Court’s response has been, “He’s the president; he can be cruel if he wants for political purposes; that’s not our problem.”
As I noted yesterday, Trump’s response to the voters’ rebuke of his cruel policies has been to double down on the cruelty and the invective. That is not a winning strategy from a political standpoint, but that is Trump’s problem and our tactical advantage. But in the meantime, tens of millions of Americans are being punished because Trump’s ego cannot endure compromise or agreement. He wants what he wants, cruelty be damned!
In a flurry of filings and orders over the last 48 hours, a federal district court in Boston ordered the Trump administration to resume FULL payment of SNAP benefits on Friday.
Trump appealed the district court’s order to the First Circuit Court of Appeals and asked for an administrative stay of the district court’s order. The First Circuit denied the request for an administrative stay, saying that it would rule on Trump’s appeal expeditiously. As a result of the First Circuit’s denial of the administrative stay, the district court’s order compelling payment of full SNAP benefits remained in effect as of Friday midday.
Trump then appealed to the Supreme Court—before the First Circuit had a chance to rule “expeditiously”—on the merits of Trump’s appeal and asked the Supreme Court to issue an administrative stay of the district court’s order compelling resumption of SNAP benefits.
Here is where it gets confusing. Justice Ketanji Brown Jackson received the emergency request for an administrative stay in her chambers because she is responsible for such requests originating in the First Circuit.
She had two choices: She could rule on her own or refer the request to the full Court for consideration.
Justice Jackson undoubtedly believed that if she referred the matter to the full Court, the reactionary majority would uphold Trump’s cruelty, as it has done on dozens of occasions before.
Justice Jackson issued an order on her own, granting an administrative stay of the district court’s order. The administrative stay expires 48 hours after the First Circuit Court of Appeals issues its order on the merits of Trump’s appeal.
The effect of her order was to suspend the administration’s payment of FULL benefits until the First Circuit issued its order on the merits of the appeal.
But the administration had already committed to paying PARTIAL benefits, starting Friday evening. I believe (subject to confirmation or contradiction), that partial benefits will be paid out starting this weekend.
The immediate reaction on social media was to harshly criticize Justice Jackson for temporarily suspending the payment of full benefits. But her order was likely a strategic move to give the First Circuit time to issue an opinion upholding the district court’s order compelling payment of FULL benefits.
IF the First Circuit so ruled, Trump would then be required to appeal the merits-based order from the First Circuit. Justice Jackson likely calculated that the members of the liberal minority on the Court had a better chance of convincing Roberts and Amy Coney Barrett to keep full SNAP benefits flowing with the aid and cover of a First Circuit ruling to that effect.
If you thought that was complicated, it is. And I could be wrong, but it is the only reasonable explanation for Justice Jackson’s actions. If she had denied the administrative stay without giving the full court a chance to weigh in, the Trump administration might have sought such a stay from a different justice on the Supreme Court. See Chris Geinder, Law Dork, Justice Jackson temporarily blocks SNAP benefits order to allow appeals court to rule. (“[I]t is also important to note that, procedurally, had she denied the request, the Justice Department could have gone to another justice.”)
So, by granting the administrative stay, Justice Jackson gave the First Circuit a chance to come to the right result; she was able to set the terms of the stay (48-hour expiration after First Circuit acts); and avoided allowing the DOJ to seek the stay from another justice or the full court.
[Late addition to the analysis by Steve Vladek, SNAP WTF?. Vladek writes,
Instead, by keeping the case for herself and granting the same relief, in contrast, Justice Jackson was able to directly influence the timing in both the First Circuit and the Supreme Court, at least for now. She nudged the First Circuit (which I expect to rule by the end of the weekend, Monday at the latest); and, assuming that court rules against the Trump administration, she also tied her colleagues’ hands—by having her administrative stay expire 48 hours after the First Circuit rules.
Justice Jackson took a calculated risk, but she did so in the hope that it would improve the chances of the Supreme Court reinstating full payment of SNAP benefits on the merits. But as many commenters on social media noted, “In the meantime, children are starving.”
It was a difficult choice, but Justice Jackson was not motivated by cruelty; rather, she was attempting to curb the instinctive response of the reactionary majority to rubber-stamp Trump’s cruel policies.
The above analysis might be moot by the time you read this newsletter, and I am way out on a limb in trying to intuit Justice Jackson’s motives. In any event, the First Circuit will rule in short order, and the Supreme Court Justices are primed to act immediately, one way or the other.
But I buried the lead.¹ The reason we are again experiencing a last-minute weekly fire drill on Friday evening is that Trump believes the Court will endorse his cruelty. The reactionary majority is a complicit enabler, even a necessary element, in Trump’s “the cruelty is the point” regime.
When this dark period passes—and it will—the first step to reestablishing the rule of law will be a ground-up overhaul of the Supreme Court. Starting with a significant expansion that will overwhelm the cruel conservative majority. Half-measures and “minimum steps necessary” are inadequate and cowardly.
We either have the will to defend our Constitution or we do not. It has been under a brutal, sustained assault by Trump. Offering bandages and water won’t rehabilitate the Constitution’s primacy as our Founding Charter. We must defend the Constitution with a robust, dedicated, and unstoppable corps of justices who will have the courage to reverse Citizens United, Trump v. US, Shelby County v Holder, Dobbs v Jackson Women’s Health, Students for Fair Admissions v. Harvard, Kennedy v. Bremerton, and NY Rifle & Pistol v. Bruen.
That is a daunting list, but it is the minimum necessary to reverse the damage inflicted by the Roberts Court.
I doubt that many readers need more evidence, but this week brought another shameful example of the Court’s cruelty. On Thursday, the Court used the shadow docket to allow the administration’s policy of allowing only “male” or “female” designations on passports to remain in effect.
While some may view the issue as a technical detail, I urge you to read this article by Steve Vladek on his One First Substack, The Breezy Inequity of Trump v. Orr.
In short, the reactionary majority upheld the male or female designation on passports in casual, cruel, analysis-free opinion that asserted that transgender people were not being subjected to “differential treatment” merely by being forced to display a historical fact of their assigned sex at birth—even though that assignment no longer describes the passport holder’s sex identification.
The majority wrote,
Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment.
As Vladek notes, the reactionary majority’s breezy dismissal of misidentifying the sex of a transgender person is intentionally mean. Vladek writes,
The inference that first sentence leaves is that the majority just doesn’t think discrimination against transgender and nonbinary individuals is a thing. But whether or not the Constitution forbids such discrimination, acting as if it doesn’t happen is not just violating long-settled standards of appellate procedure; it is unbecomingly mean.
Vladek, in his article, and Justice Jackson, in her dissent, note the cruel and willful refusal to balance—let alone acknowledge—the demonstrated and pervasive harm to transgender people caused by misidentification during international travel.
Those harms were documented extensively in the opinions by the district court and court of appeal, harms that the reactionary majority did not mention. Hence, the particular evil of the “shadow docket” which allows fact-free, analysis-free decisions in the dead of night.
I urge you to read Vladek’s article. I have failed to capture the cruelty of the reactionary majority’s opinion as he has. Better yet, read Justice Jackson’s dissent. See also Erin in the Morning, SCOTUS Rules Against Trans People’s Passport Gender Markers In Shadow Docket Ruling.
Per Erin in the Morning (EITM),
In this new shadow docket ruling, the conservative court has determined with virtually no analysis that the policy did not stem from animus towards transgender people and was not arbitrary and capricious in violation of the APA.”) [¶]
Legal experts tell EITM that this ruling could open the door to a broader assault on transgender identification policies nationwide. Real ID requirements could be weaponized against transgender people’s gender markers even in blue states. Red states could feel emboldened to enact harsher ID restrictions of their own. And with the Court signaling that transgender people may receive no meaningful equal-protection scrutiny, states may have wide latitude to pass discriminatory laws with little fear of judicial intervention—a shift that could unleash a wave of anti-trans policies backed by the Court’s implicit approval.
The gratuitous cruelty of the reactionary majority’s opinion in the passport case is an ill omen for the Court’s consideration of whether to grant review in a case that could overturn Obergefell v. Hodges, the case that recognized federal protection for same-sex marriages. See NYTimes, A Decade Later, Supreme Court Is Asked to Revisit Same-Sex Marriage Decision. (Accessible to all.)
If the Court grants review in the case challenging Obergefell, the days of federal protection of same sex marriage are numbered. The court’s shadow docket decision regarding gender markers in passports signals the hostility of the reactionary majority to the basic right of human beings to marry the people they love. As Justice Kennedy wrote in Obergefell, “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Concluding Thoughts
Senate Democrats offered a compromise to end the shutdown: Enact a one-year continuing resolution and, separately, enact a one-year extension of subsidies for premiums for the Affordable Care Act.
Senate Republicans rejected the compromise immediately.
The Democratic offer was strategically brilliant. It isolates the affordability of healthcare premiums at a time when Trump is bragging about “the affordability” under his regime. But neither Trump nor Republicans care about affordability. They want to preserve the tax cuts for billionaires, funded in part by removing social benefits like healthcare subsidies.
Democrats moved to higher ground in the shutdown battle. Republicans won’t even grant a single-year extension of healthcare subsidies as a compromise. Republicans are not interested in compromise; they want capitulation. If Republicans want to end the shutdown, they may have to abolish the filibuster.
Reporting by the New York Times strongly suggests that a group of “centrist” Democratic Senators were going to make a weaker offer to end the shutdown, but reversed course when they saw the results of Tuesday’s elections. Good!! We have stiffened the spines of Democratic Senators who may have been planning to sell out their constituents by capitulating to Trump without receiving anything in return.
Elections have consequences. Tuesday’s elections were more consequential than most because of your steadfast refusal to quit during challenging times. That is a lesson we must never forget.