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.
Facing MAGA 