Tag: Supreme Court

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The Tariff Decision, Looking Backwards: Why Did it Take So Long?

I plan to post some posts about the implication of the Learning Resources case going forward. But first a look backwards.

The oral argument was November 5, 2025. The decision was last Friday, February 20, 2026. The time from argument to decision was about 3 ½ months, or 107 days, to be exact.

What the hell was going on during those 107 days?

They Were Exchanging and Polishing Drafts

Consider this example. After oral argument, there is a split among the justices; the majority thinks the plaintiff should win, while the minority would have liked to see the defendant prevail. The job of writing the majority decision is assigned by Justice Smith, while Justice Jones is tasked with drafting the dissenting opinion.

Justices Smith and Jones, plus their respective law clerks, get to work drafting. Thereupon, they exchange drafts. Justice Smith discovers that the Jones draft makes some seemingly good points that she failed to consider in her majority draft opinion, while Justice Jones discovers the same thing about the other side’s draft.

Each side revises its draft to cast shade on the other, in a more precise and pointed way. They exchange second drafts, whereupon Smith concludes that Jones has misstated his position, set up a straw man argument, and needs to be taken to task.

Drafts continue to be prepared and exchanged until everybody is satisfied that they have set forth their respective positions in the best way possible. Finally, the law clerks go over the drafts to make sure, for example, that when Smith critiques a position taken by Jones on page 15 of his dissent, it really is page 15, not page 13 or page 16.

That was a simple example. In the actual Learning Resources case, there was a majority opinion, two concurring opinions, two opinions concurring in part and concurring in the judgment, and two dissenting opinions. 

Whole lotta draftin’ goin’ on. Whole lotta exchangin’ drafts goin’ on. 

A Lot of Drafting and Exchanging Drafts, but Should it Have Taken 3 ½ Months?

No. The justices, and their stellar law clerks who graduated at the top of the class in stellar law schools, all know how to sit down and write a polished legal draft in very short order.

In my opinion, a month would have been a generous amount of time for the drafting and exchanging process to play out. 

Are There Some Other Vanilla Excuses for the Delay?

Of course there are. 

A lot of other stuff was going on—particularly a whole bunch of emergency appeals from Trump’s many other usurpations.

And three months is not out of line for recent precedent involving consequential Supreme Court decisions.

Yadda, yadda, yadda. 

OK, What do You Think was REALLY Going On?

Many scholars and many commentators have detected a tendency for the Supreme Court to avoid confronting a newly elected president and to wait until his popularity has declined, before handing him his head on a silver platter. Common examples are the Nixon tapes decision in 1974 and the Truman steel seizure case in 1952. 

Here, the Court waited until the promised upsides of the tariff usurpation had failed to materialize, the downsides had become widely apparent, and Trump’s popularity was clearly sinking. 

Gallup, Fox News, and Pew Research, among others, all show a material decline in Trump’s popularity from early November of last year to late February of this year. 

I think that’s probably why they waited so long: they wanted to hand Trump enough rope to let him hang himself good and proper.

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A Landmark Ruling on Presidential Power

Some legal scholars say—and they’re right—that for ages to come Friday’s Supreme Court decision in Learning Resources v. Trump will be hailed as a landmark ruling on the limits of presidential power. Students of constitutional law will read it alongside Youngstown Sheet & Tube Co. v. Sawyer, a 1952 case establishing that a President cannot seize private property without congressional authorization. 

Fun fact: Both yesterday’s decision and the 1952 decision were 6 to 3 rulings.

Both Simple and Complex

The legal, economic, and political issues impacted by yesterday’s decision are, at one and the same time, both simple and complex. Like so many aspects of law and political economy, a full understanding requires thinking in different ways at the same time.

In this post, I am going to deal with the simple part of the matter: the Court’s holding—i.e., what the six members of the majority agreed on. 

The Court’s Opinion

Chief Justice Roberts wrote the opinion for the majority, consisting of himself and Justices Barrett, Gorsuch, Kagan, Sotomayor, and Barrett. The Chief Justice’s opinion is 21 pages long, but only Roberts, Barrett, and Gorsuch agreed with all 21 pages. All six agreed with the Court’s bottom line decision set forth at page 21, and all six agree with what the Chief Justice wrote at pages 1 through 7 and at pages 14-20. However, only Justices Roberts, Barrett, and Gorsuch agreed with pages 7-14 and with the part that begins on page 20.

In addition to this 21-page opinion of the Chief Justice, there are five other concurring or dissenting opinions. The whole enchilada amounts to 170 pages. 

But, of course, what really counts are the 13 pages of prose on which the 6-justice majority could come together.

A Case of Statutory Interpretation

This was not a contract case or a tort case or even a constitutional law case. It was instead a case of statutory interpretation—albeit a statute that required interpretation with the words of the Constitution in mind.

That statute in question was the IEEPA, the International Emergency Economic Powers Act, passed in 1977 to replace the old Trading with the Enemy Act, which was thought to have granted excessive power to the government.

The Two Main Issues

Going in, there were two main issues.

First, had Trump correctly determined the existence of some economic emergency justifying the invocation of the IEEPA? (And relatedly, even if he might have screwed up the emergency determination, was that determination nevertheless, as he claimed, unreviewable by the courts?)

Second, assuming for the sake of the discussion that the emergency finding was OK, did the IEEPA give the President the unrestrained power to impose any old tariff, at any old amount, for as long as he wanted, even though tariffs were no mentioned in the words of the statute and even though the Constitution says that Congress has exclusive power to impose tariffs?

The Non-Answer to the First Question

As to the first of these two questions, the Court punted. Chief Justice Roberts wrote, “We claim no special competence in matters of economics or foreign affairs.” That sentence, by the way, appeared in the part of the 21-page opinion that the three liberals did not endorse. 

Clearly, there was no majority in favor of ruling on the existence of the purported emergency, let alone a majority for rebuking Trump on that point. 

The Second Question—and the Key Ruling on that Question

The key ruling concerned the second question—whether, if a valid emergency exists, the kitbag of Presidential remedies does or does not include tariffs. 

Bottom line: six members of the Court ruled that the answer is no, the power to impose tariffs may not properly be inferred from language that does not mention tariffs, given the Constitution’s reservation of the tariff power to Congress, not the President. 

The “Major Questions Doctrine”: A Major Theological Red Herring Without Major Significance for Ordinary Civilians

As I said before, the six-member majority agreed on some 13 pages of Chief Justice Roberts’ opinion, and those 13 pages state the holding of the Court. The rest of the 170-page package is largely devoted to intense theological naval contemplation regarding the “major questions doctrine.”

The “major questions doctrine,” dating from about the year 2000, is a novel principle of statutory interpretation, beloved of business-oriented right wingers, intended to do battle against the administrative state. 

The gist is that questions of major political or economic significance may not be delegated to an administrative agency except with clear and explicit congressional authorization. If you’re interested, Wikipedia has a good article.

As we have seen, in the Friday tariff case, the six right-leaning justices split down the middle. The pro-Trump-tariffs faction had to explain how their position could be reconciled with their beloved major questions doctrine, and that, in turn, required pages and pages of tortured prose. Meanwhile, the anti-Trump-tariffs faction of right wingers wanted to get the three liberals to admit that the major questions doctrine was really a good thing after all. 

No such luck. The three liberals were having none of it. Ordinary statutory interpretation—without any special newly invented right wing canon of statutory exegesis—was fully sufficient to conclude that Trump was acting unlawfully.

And THAT, as we have seen, was, at the end of the day, exactly the 6 to 3 holding of the Supreme Court. 

The extra 150 pages were, in my opinion, largely a waste of ink and paper. 

The Bottom Line

Six members of the Supreme Court have crossed the Rubicon, ruling clearly and unambiguously that our toddler-in-chief has to give up his favorite box of matches.

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And Two More Things on the Greenland Gambit

In the last post, I speculated that today’s Greenland nonsense is a harebrained attempt by Trump to “demonstrate” to the Supreme Court that tariffs are wonderful things, and that he should continue to be able to play with his playthings. 

Two more pieces of evidence point in that direction.

(1) In his speech, he “took military force off the table.” As if to “prove” that whatever success he achieves with his antics will be the result of tariff threats, not the threat of force.

(2) Around 3PM this afternoon, he let it be known that tariffs are no longer necessary because he has the “framework” of a deal on Greenland—a deal reached with someone who has no power to give Greenland away.

So, an artificial tariff-related crisis results on a non-deal deal that he can vaingloriously proclaim to be a famous victory.

So, THERE, Supreme Court! See how well those tariff threats work!

One more question, you ask: What about the fact that he thinks Greenland and Iceland are the same place? What does that have to do with anything?

Answer: it shows that the dementia is advancing.

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Why Greenland? From Whence This Madness?

IMHO, George Will and Ross Douthat have some pretty good things to say this morning. Will sees a crisis caused by “a president’s fragile ego, as usual.” Douthat has two alternative explanations: “malignant narcissism flavored with insane Nobel Peace Prize-related self-pity” or “how Trump always negotiates.” There’s much truth in both op-eds, and you would probably do well to read them.

You would also do well to take a look at the online front page of the Wall Street Journal—a good source for the business/financial elites’ view of the world. Part of it is reproduced above.

The elites are worried. The thing they value most—maybe the only thing they value at all—is their money. Trump’s behavior is increasingly threatening their core values.

I’m posting right now because I have my own take on the Mad King’s current thought processes. It’s set forth in the next paragraph, which is all speculation—but reasonable speculation based on known facts, analyzed logically.

Trump has been told—probably by the Solicitor General, the unfortunately named Mr. Sauer—that he is going to lose the tariff case in the Supreme Court. Bigly. Faced with that grave forthcoming affront to his fee-fees, Orange Mussolini has devised an insane Hail Mary pass: use tariffs to force Europe to give him Greenland, thereby “demonstrating” to the Supreme Court the great “value” of his favorite play-pretty, his usurped power to bully other countries with tariffs and threats of tariffs.

There will be consequences. 

I hope y’all have a lot of popcorn on hand. 

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Waiting for the Supreme Court Decision on the Tariffs

On November 5, the Court heard oral argument in Trump v. V.O.S. Selections (litigation sponsored by a libertarian foundation) and other cases challenging Trump’s attempted usurpation of tariff setting powers in purported reliance on the International Economic Emergency Powers Act. The decision should come soon. (There was a rumor that it would come yesterday, but that did not happen.

How to Predict the Outcome of a Case

For best results, you want to ask two big questions—one ruthlessly objective and the other relentlessly subjective. 

Your first big question is, Which side should win the case? Gather the fact and take a rigorously objective view of them, study applicable legal principles, and ask how an intelligent, diligent, and utterly fair-minded court would apply the relevant principles to the relevant facts.

Your second big question is, Which side does the court want to win the case? Consider the judge’s (or judges’) political ideology, legal ideology, prior rulings, class interests, friends, and anything and everything else you know about the court’s leanings. 

Obviously, if the party that should win the case is also the party that the court wants to win the case, then it’s easy to predict that that party is probably going to win the case.

What Factors Apply Here?

Here is how I see it.

1. This is a case of statutory interpretation. Pretty much all the traditional canons of statutory interpretation point toward the conclusion that Trump does not have the statutory power he claims to have.

2. Taking a textualist and originalist view of the matter, one reaches the same conclusion.

3. Prudential considerations go the same way: the tariffs are harming almost all segments of the economy.

4. Because the tariffs are creating broad economic harm, they are hurting Republicans politically, and will probably play an important role in the 2026 elections.

5. Trump will scream like a stuck pig when he loses the tariff cases, but, even if he doesn’t know it, a negative decision would tend to save him from his own misjudgment.

6. Liberals don’t like tariffs, and would applaud a decision against Trump.

6. Conservatives don’t like tariffs, and would applaud a decision against Trump.

Conclusion

A decision against Trump on the tariffs would be thoroughly unsurprising.

A decision the other way would mean that something very, very odd had happened. 

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Supreme Court Bites Man: Trump v. Illinois. In Response, Man TACOs.

I recently shared some observations about the Supreme Court’s shadow docket (here and here). In brief, the Supreme Court has been catching serious flack for

  • ducking hard questions in its many shadow docket decisions involving the Trump Administration, and, generally,
  • letting the Administration get away with murder pending some final resolution of the legality of Trump’s usurpations—a resolution that, it appears, might come around the Twelfth of Never. 

But in Trump v. Illinois, in a short, unsigned 6-to-3 decision, the Court majority ruled that, pending trial and appeal, Trump had to get the National Guard the hell out of Illinois, because Trump had identified no proper legal authority to send them there in the first place. 

For a few days, people wondered whether Trump and his merry band of legal geniuses would either (i) tell the Supreme Court to go stick it where the sun don’t shine or (ii) claim authority under the Insurrection Act, even though there was and is no insurrection. 

Trump did neither. Instead, he TACOed, surrendering in his legal attempts to keep federal troops in Los Angeles and announcing that he would withdraw the National Guard from Illinois, Los Angeles, and Portland. 

So … what does it all mean?

I don’t know, and I won’t pretend to pretend that I know.

And yes, very assuredly, one swallow does not a summer make. But it cannot be a bad thing that …

… faced with a clear loss in the Supreme Court on one of his several signature issues—sending federal troops into the big cities—Trump has unambiguously backed down,

… Trump has elected, at least on this one occasion, not to put to the test whether “his” troops would or would not obey illegal orders, and that …

… a six-person majority of the Supreme Court bit the bullet, dared Trump to defy them, and came away with a famous victory.

The bet paid off.

May that trend long continue.

And this final word of speculation: as Justice Holmes said so long ago, the Court reads the newspapers. I think Chief Justice Roberts, along with his sidekicks Justices Coney Barrett and Kavanaugh, probably read the newspapers, where they grasped, one, that Trump is circling the drain, and two, that people are getting sick and tired of the Supreme Court’s fecklessness. 

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Trump, the Supreme Court, and the Shadow Docket: What’s Going On?

A Trigger Warning—and Some Disclaimers

The Trigger Warning: Some readers will be triggered by prose that, read superficially, might sound sympathetic to Chief Justice Roberts and to his sidekicks, Justices Coney Barret and Kavanaugh. Such readers may want to skip this post. In any event, they are requested not to throw food in my direction. Or, if they must, please pick the corn muffins we’re getting tonight, and take a pass on the bean soup and the pistachio pudding. 

The Multiple Disclaimers: In this post, I’m not in the moralizing business, I’m not in the mind reading business, and I’m not in the prediction business. Not that moralizing, mind reading, and prediction are unimportant. They’re just not what I’m trying to do here. Here, I’m in the hypothesizing business. I’m in the trying-to-understand business. 

The Three Court Factions

You can generally count on the three liberal justices to do the right thing. If you bet that Justices Thomas, Alito, and Gorsuch will do the wrong thing—and that Justice Gorsuch will camouflage the wrong thing with extensive verbiage made to superficially resemble legal scholarship—then you’re likely to win your bet. In the middle, that leaves the Chief Justice, along with Justices Coney Barrett and Kavanaugh. These three generally decide who’s going to win the case.

And, by the way, when I say “middle faction,” the word “middle” is not intended to be either favorable or pejorative. It just means they’re literally in the middle of the other two factions. 

The Supreme Court and Trump’s Multiple Power Grabs

It appears that the rubber will soon meet the road, and that the Supreme Court is going to make some definitive rulings on, among other things,

  • the proper construction of the emergency economic powers act that Trump has employed to justify his massive restructuring of American trade and world trade, 
  • Trump’s endeavor to rewrite the Constitution by fiat to eliminate birthright citizenship,
  • Trump’s many violations of statutory law and constitutional due process in connection with immigration roundups,
  • the Administration’s usurpation of the power of the purse, which, under the Constitution, belongs to Congress,
  • Trump’s attempt to destroy the United States Civil Service,
  • Trump’s attempts to use the National Guard and the military to take over big cities, and
  • Trump’s effort to do away with the independence of independent agencies like the Federal Trade Commission.

The Vexed Question of the Shadow Docket

In introduced this topic in the immediately preceding post, which you may wish to read now, before proceeding further. 

There are many reasons why it’s a vexed question. In the first place, the Court’s behavior contradicts what we learned in civics class—back when they taught civics in high school. We have checks and balances. When the president violates the law, the courts are supposed to check him. And indeed, lots of district courts and courts of appeal HAVE been checking Trump—but without a lot of support from the Supreme Court on its shadow docket.

Relatedly, the shadow docket is a vexed question from a technical legal standpoint. The Court is ruling on the validity of lower court decision on whether to grant a preliminary injunction pending trial and appeal, and that p.i. issue, in turn, is supposed to depend, in large measure, on “likelihood of success on the merits.” If the district court grants a p.i. against some Trump outrage, and if the court of appeals affirms, and if the Supreme Court majority then reverses the ruling, so that Trump can go on engaging in whatever horseshit he wants, pending trial, does that mean that the Supreme Court thinks Trump is right on the law and all the lower court judges are wrong?

Does it mean that the Supreme Court majority doesn’t give a tinker’s damn about checks and balances?

Does it mean that the majority wants to live in a country governed like Russia and Hungary?

Well, maybe it does mean some or all of those things. 

Or—Possibly—Something Else is Going On

I continue to focus here on the middle faction of the Supreme Court—Justices Roberts, Coney Barrett, and Kavanaugh—not on the three wingnuts, and not on the three liberals. An alternative hypothesis to explain the middle faction’s strange behavior would go something like this.

The middle faction would prefer to live in a constitutional republic governed under law, not in Hungary or Russia, but they are mindful that, to achieve that end, they have to preserve a certain level of public deference to court decisions. And, as Justice Oliver Wendell Holmes, Jr. (pictured above) said a century ago, the Court reads the newspapers. 

Having read the newspapers, the middle faction knew that a reelected, pumped up Trump was going to try to grab power in all sorts of ways. They knew that if the Supreme Court intervened immediately and forcefully, there would likely follow an immediate and grave constitutional crisis. 

The hypothesis continues: The middle faction reasoned that, instead of an immediate constitutional crisis, it would be better to wait a season; let the whole country, including the MAGA base, get a full taste of Trump’s policies; and let Trump’s political support dissipate. 

2026, not 2025, would be right year for strong action to preserve the rule of law. Or so they thought, in the hypothesis presented here.

Remember, Y’all, It’s a Hypothesis

Remember, y’all, it’s a hypothesis. There’s no mind reading, there’s no moralizing, and there’s no prediction about how the Court will actually decide all those issues I mentioned above. 

As far as predictions go, to quote the sage observation of President Eisenhower, “The future lies ahead.”

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Trump, the Supreme Court, and the Shadow Docket: Setting the Table

Something weird is going on at the Supreme Court. In my next post, I’m going to lay out a hypothesis about what that might be. Here, I need to lay the predicate for that discussion.

What is the Shadow Docket (Also Known as the Emergency Docket)?

The shadow docket consists of cases where the Supreme Court reviews lower court decisions that have either granted or denied temporary relief, pending a trial, a decision on the merits, and appeal of the decision in the ordinary course. 

In most of these cases, the lower courts have either granted a preliminary injunction or they have denied a preliminary injunction. 

What is a Preliminary Injunction?

Trials take a long time, appeals take even longer, and in the meantime you may suffer a lot of harm due to behavior that you say is illegal. Your uncle may be departed to El Salvador. Trump may have fired you from the Federal Trade Commission because you are a Democrat. Your business may be going bankrupt because of high tariffs that Trump has illegally imposed. 

A preliminary injunction is intended to preserve the status quo, preventing that injury, pending a final resolution of the dispute. 

When Should a Preliminary Injunction be Granted? When Should it be Denied?

When a party to a case wants a preliminary injunction, the court is supposed to ask four questions.

1. Considering the facts and the law, which party is more likely to win the case, down the road?

2. If the preliminary injunction is denied, how much harm will be caused, and is that harm irreparable? 

3. And what about the potential harm to the other side, if the preliminary injunction is granted?

4. Finally, in this private dispute between two parties, where does the public interest lie?

That’s the legal theory. In practice, the first factor—often called “likelihood of success on the merits”—tends to predominate. 

In other words, if a district judge grants a preliminary injunction, that often means that she thinks the defendant is behaving illegally. If she denies the request, that usually implies that, in her view, the plaintiff doesn’t have a good legal case. 

When She Rules on a P.I. Request, Is a District Judge Required to Explain Her Reasoning?

Yes. The Federal Rules of Civil Procedure provide that a federal district court is legally obligated to explain its reasoning in granting or denying a requested preliminary injunction. The main rationale for that rule is that, without a reasoned explanation, a court of appeals can’t make an informed decision about whether the district judge was right or wrong.

When the Supreme Court Rules on a P.I., Is it Legally Required to Explain its Reasoning?

No, it is not. However, before Trump, the Court normally did explain, at least briefly, how it thought likelihood of success on the merits and the other three factors applied to the case at hand. 

What’s Going on Now?

In a recent article, Erwin Chemerinsky, constitutional law expert and dean of the law school at U.C. Berkeley, explained, 

The Supreme Court always has had an emergency docket to hear requests such as those for last-minute stays of execution in death penalty cases. But it has grown greatly in recent years, and last year saw an exponential increase in orders from the shadow docket. In the October 2023 term, the court resolved 82 matters on its emergency docket. But in the October 2024 term, by June 27, 2025—the last day opinions were handed down—it had resolved 107 matters on its emergency docket. By the time the term officially ended when the new term began on Oct. 6, 2025, the court had decided 140 matters on its emergency docket.

Some of this increase is because of the many cases involving challenges to President Donald Trump’s administration’s initial actions that made it to the Supreme Court. But that does not explain all of the dramatic increase. I think that there is a simple explanation for why the shadow docket has grown: the court’s willingness to rule on matters on its emergency docket. The more the court is willing to give relief on an emergency basis, the more parties will go to the justices for stays of lower court decisions, such as of preliminary injunctions.

There is much to be concerned about in the growth of the shadow docket. Matters are decided without full briefing and without any oral argument. Yet in 2025, the Supreme Court indicated that lower courts were obligated to follow its shadow docket rulings. In several important cases, the court handed down orders without any written opinion, giving no guidance to the lower courts and making the decisions seem an arbitrary exercise of power since no reasons were given for the conclusions. In some cases, the court appeared to disregard detailed factual findings by lower courts and abandon the usual standard for emergency relief: the need for a showing of irreparable injury. …

There have been dozens of rulings by the court on its emergency docket concerning lower-court preliminary injunctions against Trump administration actions. In almost every case, the Supreme Court—virtually always in a 6-3 ruling—has stayed the preliminary injunction and ruled in favor of President Trump. These decisions have included the Supreme Court staying lower court orders stopping the firing of agency officials, ordering the reinstatement of terminated federal grants, forbidding deportations to South Sudan of individuals with no contact with that country, preventing U.S. Immigration and Customs Enforcement agents from stopping people without reasonable suspicion, and keeping the State Department from requiring that passports list a person’s birth sex rather than gender identity. …

In a ruling on the emergency docket, in United States v. Shilling, the court, once more 6-3, stayed a district court’s preliminary injunction and allowed President Trump to bar transgender individuals from serving in the military. Neither the majority nor the dissenting justices wrote an opinion.

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Trump, the Supreme Court, and Government Employee Firings: Let Us Now Rend Our Garments and Clothe Ourselves in Sackcloth and Ashes!

Washington Post, White House preps for legal fight over firings—despite court victory: A Supreme Court ruling last week means planned reductions in force can continue, but unions and other groups will battle the administration at each step.

N.Y. Times, Supreme Court Keeps Ruling in Trump’s Favor, but Doesn’t Say Why: In a series of terse, unsigned orders, the court has often been giving the green light to President Trump’s agenda without a murmur of explanation.

I’m Sorry, but to Understand Anything About What’s Going On, You Need to Know a Little Something About Preliminary Injunctions

Smith sues Jones, and asks the court for a preliminary injunction, claiming that Jones is quickly, and illegally, creating “facts on the ground” that cannot easily be reversed after a final decision finally arrives. How does the court decide whether to grant the preliminary injunction? Answer: by trying to answer four specific questions:

1. Which side is more likely to win the case, on the facts and the law?

2. If there is no injunction, and if the plaintiff, Smith, ultimately wins the case, can Smith still get justice, for example, by collecting damages? Or are Jones’s current actions doing harm to Smith that is “irreparable”?

3. If Smith is going to suffer “irreparable harm,” is that harm nevertheless outweighed by the harm that Jones will suffer if the court forbids acts that may ultimately be found to be lawful?

4. Apart from Smith’s interests, and apart from Jones’s interests, what is the public interest?

Whenever a legal rule requires a court to pour a bunch of factors into a pot, stir them around, and then see what the resulting brew tastes like, the process is likely to be somewhat messy and somewhat unpredictable. That said, most lawyers understand that the first factor—we call it “likelihood of success on the merits”—tends to be dispositive.

Trump v. American Federation of Government Employees

In this case, decided a week ago, eight of the nine justices joined in a short opinion saying that the government employees union should not get a preliminary injunction, because it was unlikely, at the end of the day, to prevail on its claim that Team Trump was illegally planning to fire lots of workers. I wrote about the case last week. 

McMahon v. New York

The McMahon Supreme Court ruling came a few days later, on Monday of this week. As in the American Federation case, the Court ruled for Team Trump. (The case was about whether mass firings at the Department of Education could continue, while the courts were dealing with the case on the merits.) Unlike the American Federation case, this was a 6 to 3 decision, not an 8 to 1 decision. And, unlike the American Federation case, the majority offered no explanation whatsoever about how it applied the four factor test, and about why it reached the result that it reached. 

In many quarters, McMahon engendered a noisy wailing and gnashing of teeth, and a call for all law-abiding citizens to rend their garments and dress in sackcloth and ashes—because the Supreme Court has gone over to Darth Vader. 

They may be right. But my view is that the catastrophists are a little premature. I shaved with Occam’s razor this morning, and Occam and I both submit that, having explained their reasoning in the union case, the majority probably acted differently in McMahon because there were not six justices who were willing to say in black and white that they thought the government would be proven right on the merits. 

And, if Occam and I are speculating correctly, the assumed caution is a reason for cautious optimism. And the assumed caution would be fully justified. Certainly, as to the massive government firings, there is one hell of a lot of litigation yet to come. 

Justice Sotomayor’s Dissent in McMahon (Joined by the Other Two Liberals)

I promised a friend that I would reproduce the dissent. So here it is.

24a1203_pol1Download
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Chicken Little Clucks Again: The Supreme Court and the Federal Employees’ Lawsuit

A couple of days ago, on July 8, the Supreme Court issued its ruling in Trump v. American Federation of Government Employees. There was a two-paragraph unsigned decision by eight of the nine justices, there was a short concurring opinion by Justice Sotomayor explaining why she went along with the conservatives on this one. (Justice Kagan, who also went along with the conservatives but didn’t say anything on her own, presumably agreed with Justice Sotomayor.) And there was a lengthy and strong dissent by Justice Jackson.

The case involved Trump Executive Order 14210, dated February 11. You can read it here—and it might be a good idea to take a gander, because you will see that it orders the executive agencies to develop some plans, and to do so in accordance with applicable law. 

Now Team Trump has some pretty screwy notions about what applicable law requires and doesn’t require. And the plans to be developed—essentially, schemes for a massive reduction in the federal workforce—would call for very unwise and very probably illegal actions to be taken.

Still, they were just plans. And the question before the Court was whether Trump was likely to win in his claim that the Constitution doesn’t prevent him from making plans—plans that he claims will be in accord with applicable law. 

As I said, eight justices—two liberals, three wingnuts, and the three judges in what passes these days for the middle—all agreed that “The District Court enjoined further implementation or approval of the plans based on its view about the illegality of the Executive Order …, not on any assessment of the plans themselves. Those plans are not before this Court.”

In the Wake of the Decision

A number of lawsuits involving specific federal agencies remain ongoing. In a couple of cases, Trump’s plans have been blocked, and the validity of those injunctions was not before the Supreme Court this week. Much additional legal activity will surely follow. 

Meanwhile, a plethora of catastrophizing headlines scream that the Supreme Court has given Trump the green light to fire federal workers.

True—but misleadingly incomplete. What they have actually done is to give Trump the green light to try to institute a massive reduction in force, and to do it as fast as they can, before litigation catches up with them. That said, there is also a green light for courts to enjoin the hell out of RIFs in specific agencies, if the RIFs don’t comply with a whole lot of legal rules, including the requirement that Congress be consulted on massive changes to the federal workforce.

The labor lawyers are going to have a good year.