In this episode of the Washington Monthly podcast, Anne Kim and Garrett Epps discuss the dangers of the Supreme Court’s increasing reliance on often unsigned emergency rulings—the so-called “shadow docket”—to rule in favor of President Trump’s agenda. They also discuss the Court’s recent rulings limiting the rights of transgender minors and their parents and the erosion of the wall between church and state. Epps argues that the Court has forsaken its role as a co-equal branch of government and a check on executive power in favor of enabling Trump’s increasing authoritarianism.
This transcript has been edited for brevity and clarity.
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Anne Kim:
Hey, Garrett it’s great to see you. I hope you’re having a good summer!
Garrett Epps:
Well, you know, Chief Justice Roberts used to say that when the court leaves town, the Constitution is safe for the summer. I’m afraid that’s no longer true, but I’m trying to pretend it is.
Anne Kim:
Well, the Supreme Court has had an extraordinarily busy few months, and they’re going to be busy for the foreseeable future. Just to list some of the rulings they’ve made recently: They’ve banned the use of so-called nationwide injunctions; they’ve allowed the deportation of eight immigrant men to South Sudan, which is a country to which these men have absolutely zero connection. They’ve upheld the Tennessee law denying gender-affirming care to transgender minors. And most recently, they’ve allowed not only the mass firing of workers to proceed, but they’ve allowed the dismantling of the Department of Education on a “temporary” basis as the cases proceed on the merits.
When Supreme Court historians look back on this era, what do you think they’re going to say about the Court’s approach, its philosophy, its decision-making?
Garrett Epps:
Well, you know, that’s a hard question to answer because we are still in the midst of this. But the result seems to be that the institution is just paralyzed and is unable to function the way it has historically. And as I looked over this desert of unsigned emergency orders, I thought back to an article in the Monthly that we ran on our website by Jack Rakove, the leading historian of the Framing and the original period, who basically wrote that this is not a constitutional crisis because our constitution has failed definitively and we are now in the post-constitutional era.
I certainly hope that’s not true, but I do think that the signs and symptoms are there of a kind of institutional failure across the government. The American government with its structure and its constitutional norms is really like a patient with sepsis, that at a certain point the infection just overwhelms, and the organs begin to shut down. The lower federal courts have been continuing to function, but the Supreme Court has taken on itself to shut them down.
This Court is ostentatiously unwilling to stand up in the slightest respect for the lower court judges who have been dealing with an administration that lies to them, that rather openly says that it will not follow their orders, that actually violates their orders and says, “What are you going to do about it?”
Anne Kim:
So do you think that the lower courts then are going to change their behavior as a result of these signals from the Court or do think the lower courts are just going to hold firm and do their job?
Garrett Epps:
This is beyond my powers of prognostication because it’s actually a kind of psychological or political science prediction, not legal, right? I frankly think that for the lower courts, the law has been on their side most of the time.
But do I think that things will stay the same? No, things never stay the same. And at a certain point, you know, a district judge is going to have to ask himself, do I just keep getting slapped down by the Supreme Court? Do I keep getting these threats? Is my family going to be in perpetual danger? Maybe I leave the bench. Maybe I just quiet down. I don’t know.
Federal judges are among the people in the world I most admire. I think they do a very difficult job. They’re by and large very, very intelligent, principled people. But institutions break. We’re seeing the Court break. At a certain point, the lower federal courts will not be able to stand up against this kind of pressure when the head of their branch is deliberately refusing to shield them.
Anne Kim:
Now, I want to ask you about the merits of a couple of places where the court has offered up some sort of reasoning and an opinion. But first, I want to point out a Blue Sky post by Georgetown’s Steve Vladek. He said that since April 4th, and he posted this yesterday, the Supreme Court has issued 15 rulings on 17 emergency applications filed by Trump, and he notes that it has granted relief to Trump in all 15 rulings and written majority opinions in only three. So just to clarify for those who are not Supreme Court watchers, that is not normal behavior on behalf of the Court, right?
Garrett Epps:
Well, to start with, the government’s got a streak that that Babe Ruth or Ted Williams would have envied. Vladek, as I recall in his book, The Shadow Docket, points out that in the Bush and Obama administrations combined, the federal government sought emergency relief in eight cases. That is over a 16 year period. This administration has sought emergency relief in 15 cases over a six month period and, as Vladek says, received it in every case.
It is almost as if the Court has changed its function, that the Supreme Court is now a part of the executive branch whose job it is to police the lower courts, whose job it is to make sure the lower courts don’t get in their way.
As to why it’s doing that, the mixture will be different for each justice. I think some of it is pure cowardice. The administration is signaling as hard as it can that it’s not going to follow adverse rulings even from the Supreme Court. So you can convince yourself, if you’re an institutionalist, that you’re protecting the institution by not getting it into a situation where the executive just finally brushes it aside.
Anne Kim:
When we’ve had this conversation before, you’ve characterized John Roberts as an institutionalist. And you’ve said again just now that if the court has an institutionalist bent, it’ll behave in a certain way. But what is the institutional justification for behaving in this way at the expense of other parts of its own branch?
Garrett Epps:
Well, you know, I think institutionalism and cowardice are very hard to tell apart. Institutionalism says we need to preserve the viability of this institution, and if we push ourselves too far out of our lane, we’re going to end up harming ourselves and being brushed aside. And I do think that that features into the Chief Justice’s reasoning at least.
Now, the motives of the other five conservatives, I don’t fully know. I don’t think anybody really knows. It’s a mixture of things. You’ve got three justices appointed by Trump, three justices who have made their peace with being Trump people, however many flashes of independence they may show. And so expecting them to throw themselves on hand grenades to stop changes in the federal government that they approve of may be a little too much.
The other thing is just fear. One thing we don’t know is what kind of back channel signaling is going on between the branches. There is a long history of that. And if you go back to the 1930s and 1940s and President Roosevelt and the Supreme Court, one thing we learned is that in 1935, the president was prepared to defy the Supreme Court in the gold standard cases. It’s not clear whether the Court knew that or not, but they backed off in that case.
And at the beginning of World War II, in a case called Ex Parte Quirin, the president had arrested Nazi saboteurs on American soil and tried them by military commission, which to a lot of people did not seem constitutional. But when that case came to the Supreme Court, when these saboteurs asked for a new trial, there’s a lot of evidence that President Roosevelt sent an intermediary to tell the Chief Justice that if he ordered a new trial for the saboteurs, the president would execute them the next day. He was not going to follow any order of the Court.
Now is something like that going on? I don’t know. We certainly can’t expect that Donald Trump is reticent–that he wouldn’t do that. This is a man who came onto the floor of Congress and shook hands with the Chief Justice and said, “Thank you very much. I won’t forget it,” speaking of the immunity ruling.
And some of it could be physical fear. I don’t really know, but this majority is behaving in a way that is shocking.
Anne Kim:
Let’s move to individual cases. And I want to ask about one case that looked like a huge victory for the Trump administration on nationwide injunctions. But then the opinion by Justice Amy Coney Barrett seemed to allow a window for lower courts to use class action certifications to achieve close to the same effect as a nationwide injunction. How do you interpret what’s going on?
Garrett Epps:
Well, you know, I don’t want to make predictions. But I do think there has been a tendency on the part of this Court to say, “We can’t give you relief in this case, but if you ask for it in a different way, then we might.”
But it’s not at all clear that they mean that. We have a case now coming out of New Hampshire where the judge has certified a nationwide class of babies who will be born after the deadline of the Trump citizenship proclamation.
I think this is a classic candidate for a class. There are large numbers of potential plaintiffs, and the idea that each baby would have to go to court and have its own lawyer arguing that it’s a citizen is ridiculous. The plaintiffs have one issue in common: Does the 14th Amendment guarantee birthright citizenship or not? And the representation is adequate.
I’m quite sure there will be an emergency appeal to the Supreme Court asking the Court to decertify the class. And the question then becomes, did the Court mean what it said? This is a Court that doesn’t have a very good record of meaning what it says anymore.
Anne Kim:
And just for context, what you’re walking through are the four factors under Rule 23 of the Federal Rules of Civil Procedure under which a judge determines whether a class can be certified or not.
Garrett Epps:
Correct. Numerosity, commonality, adequacy of representation and similarity of issue. But at any rate, class actions are not a slam dunk. Courts are supposed to exercise some discretion or care in certifying them. And there are plenty of ways the Supreme Court could say, oh, well, maybe another class, but not this one. Meanwhile, of course, they are allowing this administration to attack in the most basic way newborn American children. And as Justice Sotomayor said in her dissent in the Casa case, what would they do if a future president said all people have to turn their guns in?
The example she didn’t use, but I think ought to be on everyone else’s mind is, what would this Court do if an administration said, “All persons of the following ancestry shall report to transit points for internment?”
That is no more unconstitutional than changing the rules about citizenship. That is no more sinister. That is no more anti-human. And would the Court say, “Well, you know, each individual will have to bring a lawsuit and say, no, don’t send me to the camps, send the others, just not me.” That’s not the way a legal system is supposed to work.
Anne Kim:
Justice Jackson also had a very powerful quote in her dissent in Casa where she said, “Executive lawlessness will flourish.” And to me, the word “will” seems to be a misnomer. It already is flourishing!
Turning now to your point about just how conservative this Court actually is, some of the substantive rulings that have been issued will profoundly limit people’s rights. One decision I want to ask you about is United States versus Skrmetti, which is the decision that upheld the Tennessee law banning gender-affirming treatment for transgender minors. A similarly conservative decision is Mahmoud v. Taylor. And that’s the one that ruled that parents in Montgomery County, Maryland, have the right to opt their kids out of story time with books that happen to involve LGBTQ characters if they are religiously objecting to that content. What do you make of these decisions?
Garrett Epps:
Look at the two cases together, and both of them have to do with parental rights and the parents’ rights to care for the upbringing of their children. Skrmetti says that even if a physician and the parents agree that a child is suffering from a recognized disorder, gender dysphoria, and that these treatments would help prevent a bad outcome in this particular case, parents are not permitted to make that choice because the Tennessee legislature thinks they would do better not to. On the other hand, when you have a local school board that thinks it would be good for students to be exposed to literature that is inclusive, then parents of course have the right to say, “No, no, no, that mustn’t be allowed.”
So there’s a tremendous contradiction between the two.
An equally important thing about Skrmetti is the way that the Court dodges the issue. You or I would say this is a case about trans rights and the extent to which trans people, in this case, minors, but not just minors, are entitled to have their uniqueness, their physical integrity, their freedom of choice protected by the Constitution from a fairly aggressive intervention by the states. And the Court gets around that by adopting this transparently dishonest argument that the Tennessee statute is not an anti-trans statute at all but instead discriminates against certain medical procedures and treats both genders the same.
I don’t know if people remember Loving v. Virginia, but the Commonwealth of Virginia argued to the Supreme Court that it didn’t discriminate by race because the law said white people can’t marry Black people and Black people can’t marry white people. So it’s perfectly equal, no harm, no foul. The Court said that’s a ridiculous argument. But now the Court has picked that argument up 50 years later saying we can make trans people disappear because they’re not really a rights-bearing class of people, and this is simply a sort of medical regulation. That’s a very ominous sign.
Anne Kim:
Okay, so let’s move to next term. The Court can’t dodge the substantive questions for that much longer. Birthright citizenship will come up on the merits. The president’s ability to levy tariffs randomly, the president’s ability to use the Alien Enemies Act to send people out of the country randomly – all of that is going to come up.
I know you don’t like to predict, but any thoughts?
Garrett Epps:
Well, I have spent a lot of the last few weeks re-examining my life choices and thinking that I could have pursued a career in used car sales, for example, or some other profession that has some shred of integrity to it.
And so for that reason, I’m very reluctant to predict what the Court will do. Now, I’m going to note that a lot of the very smart colleagues that I have in the professoriate, people much smarter than me, people who know, you know, have been on the inside of the court as clerks or lawyers, are quite confident that the court will not approve Trump’s démarche on birthright citizenship, which is just the most flagrant piece of lawlessness we’ve almost ever seen. I would like to believe that.
But things are changing very fast. And I am reluctant to predict with confidence that the Court will make the administration back off on citizenship when they’ve already allowed it to go into effect. We’ll know more when we see what they do with the class certification. But I think that is the case that will determine whether we are now in a state of just nihilism constitutionally. If the Court can find some way to allow Trump to do this, there really is nothing that Trump won’t be able to do.
We don’t know what’s going to happen. We don’t know why the court is doing what it’s doing. And remember, we’re dealing with a six member majority, a multi-headed beast, and it’s very hard to say which way the beast will run when we ring the bell or whatever else.
And I think that the degree to which the administration is stepping up its pressure on the public and on institutions — conducting mass immigration raids and things of this sort– is just raising the temperature and putting more pressure on a Court that has really shown very little ability to do what we all were taught in high school the Court would do, which is to use its independence to stand outside of the political gale and decide based on neutral principles.
The way we talk about things is changing constantly under the pressure of this administration. And just to take one example that seems absurd, in the last week, we’ve had the president say that he objects to the affect of a certain comic actor and therefore is going to deprive her of her American citizenship. If you said 90 days ago, “Can the president object to the presence of someone on television and therefore take away their citizenship?” The person would be like, “What are you, nuts?” Now we’re arguing that Trump’s power over citizenship doesn’t extend that far, whereas in fact, the president has no power over citizenship. That’s how far the Overton window has shifted.
What this illustrates to me is a proverb that was coined by Samuel Johnson in the 18th century where he said we “succumb to absurdity as the eye in time is accommodated to darkness.” And we’re seeing that darkness is growing. The eyes of everybody, including the Supreme Court justices, are accommodating to the kind of things that Trump is doing.
Staying out of certain fights to preserve the institution is a very easy thing to say. But a Court that cannot look at rampant lawlessness and call it by what it is isn’t really a court anymore. The Supreme Court will have a very different role in our government going forward unless something drastically changes.
I was also reminded this week of a quote from Looking Back at the Spanish War by George Orwell, a very great essayist, who said, talking about the fall of the Spanish Republic, he said, “I think it is better, even from the point of view of survival, to fight and be conquered than to surrender without fighting.” A court that draws lines and says to the administration, “If you’re going to cross these lines, we’re not going to help you,” is a very different historical legacy from a Court that enables, that helps, that steps out of the way, that seems to be bending the knee to these same lawless initiatives.
Anne Kim:
Thank you, Garrett. Always a pleasure to talk to you, even in these dark times and look forward to having a conversation again soon.
