You’ve seen the ICE raids, masked agents grabbing people who they think might be undocumented, sometimes only on the basis of skin color. “I’m from Brooklyn!” Or because they were speaking Spanish. How can this possibly be legal in the United States of America? “More fear.” “Terrorizing communities.” “170 U.S. citizens were detained by Homeland Security.” Well, it became legal just six weeks ago, when the Supreme Court gave ICE the green light to use racial profiling to decide who they suspect is undocumented. What made the Supreme Court’s decision so concerning wasn’t just how the court ruled, but also how little explanation the public received. The court held no oral arguments. They didn’t reveal the vote count, and the majority’s explanation amounted to little more than because we said so. Like so many recent decisions from the Supreme Court, this decision was delivered through a shortcut called the emergency docket. It’s meant for emergencies, but the Trump administration has been using it over and over again to expand the powers of the presidency, and the Supreme Court is playing along. This is the opinion of the New York Times editorial board. When the Supreme Court releases a normal merits docket decision —— “Here it is. Let’s take a look at it.” They outline their reasoning in dozens of pages. Pages that my colleague Emily Bazelon spends a lot of time reading. There’s one opinion for the majority: a rendition of the facts. Why the court has jurisdiction, what the lower courts have ruled previously, the legal analysis, which statutes or provisions of the Constitution they think are relevant, why they apply, the dissenting opinion, the kind of challenge to the majority opinion. There’s a kind of back and forth trying to expose each other’s weaknesses. So what’s the point of all these words? Fundamentally, showing their work so we understand what they’re doing. That is the basis of the judiciary’s authority. It’s how we know that what they’re doing is legitimate. Now, all of this writing and debating takes time, but on rare occasions, the court needs to move quickly, which is why the Supreme Court invented the emergency docket. Those faced with a lower court ruling that could cause great harm have the opportunity to ask the Supreme Court for emergency relief. For most of the country’s history, it was very rare for a presidential administration to ask for emergency relief. Bush asked for it five times and Obama only three times. Before that, the emergency docket used to be used almost entirely for one type of case. If you have your execution scheduled sometimes at midnight on the day that you’re going to the Supreme Court, it’s truly life or death. You cannot afford to wait. But today, the Trump administration has been using the emergency docket at an unprecedented rate, applying for emergency relief nearly 30 times since January. When one of his executive orders is deemed unlawful by a lower court, the Trump administration asks the Supreme Court for emergency relief, and time and time again, the conservative supermajority has taken the case and sided with the Trump administration, often leaving the American public with little explanation. “The court said the Trump administration can continue indiscriminate immigration stops targeting Latinos and Spanish speakers.” “To allow members of the Department of Government Efficiency to access personal information on millions of Americans ——” “Can cancel temporary protections for nearly 350,000 Venezuelan migrants.” “It’s not just that they’re overturning some of these decisions; it’s that they’re not really explaining why.” Most of these emergency docket decisions look like this. A single paragraph with little or no explanation. One way to think about this is all the examples in our lives when it helps to have explanations for what’s happening. So you get a paper back that you wrote in school and it just has a grade on it, but you don’t know what the teacher’s reasons were for giving you that grade. Especially if you didn’t get an A, you’re wondering: What did I do wrong? How could I improve on this? What if you get arrested and the police don’t tell you why? You’re not sure what you did wrong. To understand how these decisions are changing the powers of the presidency, just look at what happened with the Department of Education. All throughout the campaign, Trump made his intentions clear. “I’m going to close the Department of Education and move education back to the states.” But as president, he doesn’t actually have the authority to do that. Only Congress does. But that didn’t stop Trump. “President Trump just now signing that executive order to gut the Department of Education ——” Whole units of the Department of Ed get dismantled. There’s just nobody there to do the work anymore. So states and school districts sued, claiming it was unconstitutional. The lower courts agreed with the people who were challenging the executive order. But when the case reached the Supreme Court, the Supreme Court, on its emergency docket in this very brief, unsigned order, allowed the president to take these steps. And so we’re left wondering why. It’s just a big question mark. This opinion creates a precedent that the president can effectively dismantle a federal agency through mass firings With free speech, free press, open courtrooms and the right to due process, America has long been a land where we show our work, rather than hide it in the shadows. That the nation’s top court has suddenly excused itself from this tradition of transparency is alarming. Overuse of the emergency docket, it’s concentrating power in the hands of the president by ruling on his behalf, and by making itself the place deciding these questions, it’s also concentrating power in its own hands.
