Friday, April 24, 2026

The toast that will define a generation of journalists

 


There is a moment in every profession when the abstractions fall away.

The credentials, the access, the invitations, the flattery, the proximity to power — all of it dissolves into a single, defining question: Who are you when it matters?

For American journalists, that moment arrives under the chandeliers of the White House Correspondents’ Dinner, to be held tomorrow night in Washington, DC.

It will be dressed up as tradition. It will be rationalized as access. It will be defended as necessary — “this is how the system works.” There will be laughter. There will be tuxedos. There will be the quiet hum of ambition, and the louder buzz of self-deception.

But let’s be honest about what it is.

It is a test.

And for some, it will be a failure that defines them forever.

Because the man at the center of this spectacle — Donald Trump — has done more to degrade, intimidate, and threaten the free press than any figure in modern American history. That is not hyperbole. It is a matter of record.

He has called journalists “enemies of the people,” borrowing the language of tyrants. He has smeared reporters as dishonest, corrupt, and dangerous. He has attempted to delegitimize any institution that dares to hold him accountable.

And yet, there will be journalists — credentialed, celebrated, and well-compensated — who will walk into that room, clink glasses, and laugh.

They will call it professionalism.

History will call it something else.

Let’s talk about what is being normalized.

When Donald Trump attacked Megyn Kelly during the 2016 campaign, he didn’t merely criticize her reporting. He smeared her with a grotesque insinuation about her body, suggesting she had “blood coming out of her wherever.” It was crude. It was misogynistic. It was deliberate.

When Kaitlin Collins was barred from a White House event early in his first term for asking questions he didn’t like it was a direct act of retaliation against a reporter doing her job. Later, in a nationally televised town hall, he called her a “nasty person” to her face. Not wrong. Not mistaken. Not even biased.

When he went after Katy Tur, he singled her out at rallies, calling her “disgraceful,” and encouraging a crowd dynamic that made a working reporter a target in real time — a spectacle of intimidation broadcast to millions.

When Yamiche Alcindor asked questions grounded in fact, she was accused of posing “racist” inquiries — not as a good-faith critique, but as a tactic to discredit and silence.

When April Ryan pressed for answers, she was told to “sit down” and stop speaking — a moment that revealed not just hostility to the press, but a reflexive disdain when challenged by a black woman doing her job.

And it didn’t stop there.

He mocked Mika Brzezinski as “low IQ” and derided her appearance. He attacked Greta Van Susteren and Savannah Guthrie when they asked questions he didn’t like. He turned the act of journalism — particularly by women — into something to be punished, ridiculed, and degraded.

This is not politics.

This is not normal.

This is the corrosion of a democratic norm so fundamental that without it, the system cannot function: a free press that is not afraid.

Now imagine walking into a ballroom, and raising a glass to that.

Because that is what this is.

Every laugh, every handshake, every photograph taken in that room sends a message — not just to the man being normalized, but to the reporters who have been targeted, harassed, and threatened.

It says: This is acceptable.

It says: We will endure anything for access.

It says: Our careers matter more than the principle we claim to defend.

This is the great lie of Washington — that proximity to power is the same as accountability.

It is not.

Accountability is uncomfortable. It is adversarial. It is often lonely. It does not come with invitations to banquets or selfies with the powerful.

What comes easily is access.

Access is seductive. It flatters the ego. It whispers to the ambitious that they are important, that they are insiders, that they are part of something exclusive.

But access without independence is not journalism.

It is complicity.

And complicity, in this moment, is not neutral.

There will be those who say: “It’s just a dinner.”

That is the language of minimization, the refuge of people who understand the truth, but lack the courage to confront it.

Because it is never “just” anything when the stakes are this high.

The White House Correspondents’ Dinner is a symbol — of the relationship between power and the press. Symbols matter. They tell us what is tolerated, what is celebrated, and what is ignored.

What is being ignored here is the cumulative effect of years of attacks — not just rhetorical, but physical and psychological. Reporters have faced threats. News organizations have had to increase security. The cost of doing the job has risen because one man decided to turn journalism into a target.

And still, the invitations go out.

Still, the RSVPs come back “yes.”

So here is the question — the only one that matters: what will you trade for your seat at the table?

Your credibility?

Your integrity?

Your solidarity with colleagues who have been singled out and demeaned?

Because that is the transaction.

No one is forcing anyone to attend.

This is a choice.

A career-defining choice.

Years from now, when the moment has passed and the consequences are clearer, there will be no ambiguity about who stood where.

There will be those who chose to maintain their independence — who understood that journalism is not about being liked by the powerful, but about holding them accountable.

And there will be those who chose comfort.

Who chose access.

Who chose to laugh in the same room as a man who has spent years trying to undermine the very profession that gave them their platform.

History is unforgiving about these things.

It remembers who spoke up.

It remembers who stayed silent.

And it remembers who laughed.


Wednesday, April 22, 2026

The Umpire Was Taking Sides

 

The Umpire Was Taking Sides

New York Times bombshell exposé traces Court's shadow docket to its dubious origin.

Harry Litman

Apr 22, 2026


 

Ten years ago, over a long February weekend, five Supreme Court justices quietly inaugurated a practice that would reshape American law and policy for the next decade. Last Saturday, the New York Times took us inside the room where it happened.

The Times published a package of leaked internal memos from the Supreme Court justices, sixteen pages of correspondence exchanged over five days in February 2016, that traced the birth of the so-called shadow docket. The memos had never been seen before. They show the justices writing to one another on formal letterhead, addressing each other by first name, signing off with their initials, debating in real time whether to do something the court had never done: freeze an entire federal regulatory program while the courts considered its legality.

Some commentators, mostly on the right, quickly moved to dismiss the exposé: nothing to see here, everyone already knew the court was using its emergency docket more aggressively. Move along.

They are wrong. It is a big story. Not primarily because of the memos themselves (remarkable as they are), but because of what they reveal: the founding moment of a procedural mechanism that has reshaped American law and policy over the last decade. And more than tracing the birth of the doctrine, the memos provide an origin story that is difficult to square with the ideal of a modest, impartial, and deliberative High Court.

They also shine a harsh light on Chief Justice John Roberts, who has long cultivated a public image as the neutral umpire of American law. The memos show him pushing the court hard to take aggressive action that was unprecedented, tenuous, and consequential.


The shadow docket refers to cases in which the Court grants emergency relief without the normal process of briefing, oral argument, and written opinions – in the shadows, as it were. Since the whole point of a Court is to rationalize and explain its decisions, the approach is supposed to be reserved for an extremely small slice of cases in which there is an unavoidable need for exigency.

So in a death penalty case with a scheduled execution, or an election case with a looming deadline to certify a candidate, the court might need to take immediate provisional action, for example, staying the execution, before it’s able to consider the case in its normal extended course.

In fact, the memos show that the Court adapted its existing emergency procedure for capital cases—the same quick round-the-horn canvassing used for last-minute death penalty stays—in the 2016 case at the heart of the Times story. But it put that procedure to very different ends. For the first time, it became a tool for making major decisions about nationwide federal policy, quickly, secretly, and without accountability to anyone.

The case was West Virginia v. EPA, involving the Obama administration’s Clean Power Plan, an ambitious EPA regulation aimed at shifting the nation’s power sector away from coal. A group of states challenged it. The D.C. Circuit refused to freeze the plan while it considered the challenge. The states went straight to the Supreme Court to renew that motion for a stay, even as the case remained in the court of appeals.

As even West Virginia’s own solicitor general later acknowledged, this had never been done before. The court had granted emergency relief before, in death penalty cases, election disputes, and the occasional challenge to a state law. But the court had never intervened to freeze an entire nationwide federal regulatory program, initiated by an executive branch agency, before any lower court had ruled on its legality. That was new. The EPA’s general counsel called it a Hail Mary. They were not especially worried.

They should have been.


Roberts, as Circuit Justice for the D.C. Circuit, received the emergency application first and drafted a memo to the full court with his own analysis. Nothing unusual about that. But the memo he circulated was far from routine. Rather than the standard canvassing of arguments on both sides, Roberts’s memo was a piece of forceful advocacy. He predicted the court would take the case, predicted it would reverse, and insisted immediate action was required because the energy industry “must make changes to business plans today.”

The memo relied not on a factual record—there was as yet no record—but on public sources such as a BBC television interview with the EPA administrator and a blog post. Roberts used these sources to support two core claims: that the plan would become functionally irreversible if the court did not act immediately, and that the costs of compliance would run into the hundreds of billions of dollars, figures he himself acknowledged were likely inflated.

Justice Breyer offered a diplomatic compromise. He proposed the Court tell the D.C. Circuit to move quickly, and tell the states they could apply to the EPA for two-year extensions of the compliance deadline. If extensions were denied, the states could return to the Supreme Court at that point. Under that framework, no state had to do anything immediately. No industry player faced imminent disruption. Implicit in Breyer’s memo was a direct criticism of Roberts’s irreparable harm analysis: there was no irreparable harm as of yet, not when the states could put off compliance for two years.

But Roberts doubled down. The states would still have to “engage their regulatory apparatus,” he wrote. That amorphous prospect was enough in his view to constitute “irreparable harm.”

Justice Kagan pushed back directly: “As far as I can tell, it would be unprecedented for us to second-guess the D.C. Circuit’s decision that a stay is not warranted, without the benefit of full briefing or a prior judicial decision.” She also directly challenged the irreparable harm claim, calling the industry’s predictions of immediate disruption “entirely speculative and highly doubtful.” The rule imposed no direct obligations on private parties, only on states, which could seek extensions and buy themselves two years. There was, she argued, simply nothing that could not wait.

Remarkably, neither Roberts nor any other justice ever directly answered her. Roberts conceded only that “the posture of this stay request is not typical,” and moved on.

Justice Alito weighed in the same day, taking the opposite view with characteristic bluntness: failing to act, he wrote, would render the court’s institutional legitimacy “a nullity.”

Anthony Kennedy (for whom I clerked) settled the matter with a three-sentence note: the court would probably grant a stay in four to six months anyway, so it might as well do it now.

That reasoning, of course, in effect acknowledged that there was no immediate need for the stay. That the court “probably” would grant it, and not immediately but months later (during which the states could seek an extension), suggests doubt as to both the need and the urgency for immediate intervention.

But that vote broke the stalemate. The order issued at 6:20 p.m. on Tuesday, February 9, 2026.


One might assume, or hope, that even though the court’s decisions in shadow docket cases are themselves curt, a rich deliberative process occurs behind the unexplained public orders. The Times story lays that assumption to rest. The Court’s entire deliberations consist of a series of hastily sketched thoughts that are not remotely a stand-in for the normal briefing, argument, and deliberation of a merits case. ** katie to place

As Steve Vladeck, the foremost scholar of the shadow docket, put it when we discussed the story: “This is a bit of the emperor really not having much clothing”. Those memos, in all likelihood, were the process. There was nothing more happening behind the curtain.


At the core of shadow docket outcomes sits a concept of irreparable harm that has become all too malleable in the justices’ hands. The Court has applied it casually and inconsistently, accepting harm that is neither immediate nor unavoidable.

In the Clean Power Plan case, the harm Roberts invoked was that states might have to start thinking about regulatory compliance. Industry might voluntarily begin adjusting. That is not irreparable harm by any serious measure. Voluntary compliance with a rule that has not yet been struck down is not a constitutional injury. Engaging a regulatory apparatus is not irreparable. And Breyer’s compromise, which Roberts rejected, would have mooted even those attenuated concerns.

Roberts never even mentioned the harm on the other side: to the government trying to implement its climate policy, to the environment, or to anyone outside the power industry.

The contrast with the Court’s treatment of the shadow docket during the Trump administration is glaring. In case after case, the Trump administration has claimed, with remarkable success, that any court order blocking any executive policy constitutes irreparable harm to the government. The mere inability to enforce whatever it wants, right now, counts as injury enough.

The standard Roberts refused to apply to the Obama administration has become the automatic, unquestioned assumption when the program belongs to Trump. Roberts himself, in a 2012 in-chambers opinion, established the principle that the government suffers irreparable harm when courts enjoin its policies. He simply declined to apply it in February 2016. The standard did not change. The party in power did.


The practice the EPA order inaugurated has dramatically affected the entire country in the ten years since, often without the public fully appreciating the stakes. In the entirety of the Obama administration, the government filed three emergency applications with the Supreme Court. In the first fifteen months of Trump’s second term alone, the number is thirty-four.

Far more troubling is the pattern of how the Court’s conservative supermajority has ruled in these cases. The shadow docket has assumed an outsize importance in enabling Trump’s agenda, granting him emergency victories on immigration, agency power, and personnel. The court used the shadow docket to allow the firing of 16,000 federal workers, to strip legal status from more than 500,000 immigrants, to terminate research grants mid-project, and to permit deportations to third countries without basic due process protections. And every one of those decisions arrived in unsigned, unexplained orders, without a word of reasoning to the public that lives with the consequences.


One might assume, or hope, that even though the court’s decisions in shadow docket cases are themselves curt, a rich deliberative process occurs behind the unexplained public orders. The Times story lays that assumption to rest. The Court’s entire deliberations consist of a series of hastily sketched thoughts that are not remotely a stand-in for the normal briefing, argument, and deliberation of a merits case.

The Supreme Court’s authority rests entirely on the persuasiveness of its reasoning. The political branches can draw arbitrary lines; the Court must justify and persuade. As Professor Vladeck put it: “What makes the Supreme Court different from the other branches of government is that its power comes from its explanations. If it’s not explaining itself, all it’s doing is fiat.”

The shadow docket has become a fiat machine, one of enormous and often unappreciated import in the lives of Americans. At his confirmation hearing, Roberts famously promised “to call balls and strikes, and not to pitch or bat.” The memos show something different: a justice with a rooting interest, and a strike zone that shifts depending on who’s up.

Talk to you later.

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