View from K Street: Judicial emergency

For generations, we’ve looked to the Supreme Court for thoughtful, reasoned opinions, published after months of deliberation with all the arguments set out before us. Notably, each Justice puts their name on the rulings so we know what they think and how and why they ruled. Many decisions have multiple opinions. Some of the most significant are unanimous. But unified or splintered, the whole point was that the public shared in the reasoning and the outcome. It was all there for us to read.

Now we are moving to judgment by fiat—terse, anonymous decisions issued without public argument, without even the barest rationales. The “least dangerous branch” is becoming the least visible, shirking its gravest responsibility: to assure the public that this remains a nation of impartially administered laws.

Enter the Emergency Docket, the Court’s process of choice to cut short judicial consideration of profoundly important and dubious legal executive actions and—in almost every recent instance—to give a quick victory to President Trump. Using a procedure that was rare and reserved for real emergencies, like imminent capital punishment, this Court has dismissively ignored the factual record developed by the district courts, dispensed with the painstakingly prepared briefs, prevented the insights of appellate jurists from being prepared, and issued short, conclusory, and unsigned orders on stunningly important matters.