Barry Goldman on why Courts don't matter. Guns do.

 SCOTUS exists because of Dual Sovereignty. It is meant to check over-reach by the Federal Government. It wasn't created to facilitate 'lawfare' or to do away with the 'doctrine of political question'- i.e. undermine executive privilege.

SCOTUS has a 'merits docket'- cases where there is a genuine constitutional question or ambiguity in the law. It's so called 'shadow docket' is merely that which involves staying decisions of lower courts where there has been judicial overreach. 

Barry Goldman, writing for 3Quarks, laments SCOTUS's refusal to let lower courts curb executive privilege. But is it really unfair to curb 'Lawfare' by lawful means?

When there are disputes about the application of the laws,

we want them to be resolved quickly, consistently and as cheaply as possible. The law is merely a service industry. It should facilitate, not hinder, utilitarian activities.  

we would want them resolved by an independent judiciary,

No. We would want the laws to be applied in a cheap but effective manner by people who specialize in that type of administration. Thus we don't want judges to run the police force. We want guys with long experience of policing who know when and to what extent a particular law should be applied and when it is better to turn a blind eye. 

Furthermore, we want politicians to decide issues of policy and to decide when and to what extent a particular policy should be applied. This requires a sensitivity to current economic conditions and the public mood. 

Consider what just happened in Bangladesh. There was a student agitation against reservations for the descendants of 'freedom fighters'. The P.M abolished them and the agitation ended. Then the High Court reinstituted them. The students agitated again and by the time the Supreme Court watered down Reservations, the agitation had turned into a Revolution. The Prime Minister had to flee. The Chief Justice had to resign. It is an open question as to whether elections will be held and Democracy will be restored. 

Suppose the Judiciary decides to ignore 'political question' and inquire into more and more executive actions. What if the executive ignores the Courts? What can the Judges do? Hand down contempt of court judgments? Who will enforce them? If the Legislature backs the Executive and the Army stays loyal, then Judges won't get paid. Any public servant who obeys the orders of the Court, where they conflict with those of the Executive, loses his job.  

after full briefing and argument, in reasoned, written, publicly available opinions.

The public is not interested in any such thing. We don't want to know how the sausage is made. All we require is that the sausage should be worth its price. If it isn't, there won't be a market for it. The thing will become a private hobby, not a viable industry.  

No Star Chambers. No secret tribunals.

No flying saucers inflicting anal probes. No shape-shifting lizard people sneaking into our homes while we are asleep and stealing our precious bodily essence by means of surreptitious acts of cunnilingus and fellatio.  

Of course, there are legitimate reasons to keep some information confidential, and there are legitimate emergencies when time is of the essence and ordinary procedures need to be abbreviated. But the default condition in judicial decision making should always be transparency and reasoned discourse.

Which obtains. It is fucking obvious that Judges appointed by a previous administration are trying to derail the programs of the current administration. Since SCOTUS has a majority favourable to the current administration, it blocks these attempts. There is no risk- as there was with Biden- that the Legislature might expand the Bench or take other action to curb the power of the current majority.  

That is why the explosive growth of the Supreme Court’s shadow docket is so alarming.

It merely arises from the explosive diarrhoea produced by Judges loyal to the old order.  

According to Stephen Vladeck, Georgetown law professor and author of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, the number of full court decisions on emergency applications that are not signed, not explained, not argued, and not fully briefed:

went from one every other year during Bush and Obama to almost one a month during the first Trump administration. The Biden administration averaged five per year. And now we’re at basically one a week.

There are cases- e.g. the ban in some states on demonstrations outside abortion clinics- which conservative Supreme Court judges want to hear, but if the majority will vote against the thing, time is saved. Judges are welcome to register their dissent regarding cases not heard on 'merits'. 

Vladeck quotes Justice Kagan:

who was appointed by Obama 

this Court’s shadow-docket decision-making every day becomes more unreasoned, inconsistent, and impossible to defend.

Kagan thinks Trump's decisions are evil. Why can't SCOTUS just tell him to stop being so naughty and send him to bed without any supper?  

He quotes Adam Serwer’s 2021 Atlantic article, Five Justices Did This Because They Could:

Serwer was angry that Dobbs v Jackson wasn't eliminated in the oubliette of the shadow docket. 

The shadow docket has begun to look less like a place for emergency cases than one where Republican-appointed justices can implement their preferred policies without having to go through the tedious formalities of following legal procedure, developing arguments consistent with precedent, or withstanding public scrutiny.

Democratic-appointed justices pushed through all sorts of shite. But Judicial activism is a two edged sword.  

Vladeck’s book came out in 2023.

At that time, we thought Trump would be hurt by the reversal of Roe v Wade. But he was able to say it was merely a matter of States' Rights.  

Since the beginning of the second Trump term, the situation has gotten far worse.

It has gotten better. Lawfare is being curbed. Vance has raised the question of whether the Judiciary really has any effective sanction against the Executive.  

The shadow docket’s proliferation of “emergency” decisions has dramatically increased not only in number but in scope. The exception has swallowed the rule. Major decisions on central legal questions are being made in unsigned, unexplained orders.

The central legal question is whether a Federal Judge appointed by the Dems can prevent POTUS from doing what he promised the voters he would do. The answer is 'no. Don't be silly.'  

This undermines an essential component of the social contract.

It is an essential component of the social contract that the cunt who wrote this submit properly notarized documents and reasoned arguments able to withstand public scrutiny any time he wants to scratch his arse. Furthermore, why is he not coming to scratch my arse anytime he scratches his own arse? Is it coz I iz bleck? Does the US constitution really permit such blatant racism?  

The public has a right to expect the Supreme Court to show its work and sign its opinions.

We have a right to expect this cunt to prove beyond shadow of doubt that he is entitled to scratch his own arse even if he is currently refusing to scratch the arse of every racoon in the vicinity.  

We can’t expect politicians to be anything other than politicians.

We can expect anyone who writes for 3Quarks to be as stupid as shit.  

But we have a right to expect judges to act like judges and not just politicians in robes.

Not in America. Judges are political appointees. There is no self-selecting Collegium. Consider Earl Warren who presided over the Warren Court. He was the Republican Governor of California appointed to the Bench by Eisenhower.

Justice Kagan, along with Justices Sotomayor and Jackson, has been a fierce critic of the shadow docket.

Because they are the minority. If they become the majority they will use it in exactly the same way.  

Her dissents in shadow docket cases make for inspiring reading.

So does Thomas's dissent in the abortion clinic 'bubble zone' case.  

But a troubling new wrinkle has appeared. Justice Kagan concurred with the majority in Department of Homeland Security v. D.V.D. Here is her concurrence (citations omitted):

I voted to deny the Government’s previous stay application in this case, and I continue to believe that this Court should not have stayed the District Court’s April 18th order enjoining the Government from deporting non-citizens to third countries without notice or a meaningful opportunity to be heard. But a majority of this Court saw things differently, and I do not see how a district court can compel compliance with an order that this Court has stayed.

In other words either SCOTUS is supreme or it is just another Court. 

Because continued enforcement of the District Court’s May 21, 2025 order would do just that, I vote to grant the Government’s motion for clarification.

That left only Justices Sotomayor and Jackson in dissent. Here are the first few sentences of their dissent:

The United States may not deport non-citizens to a country where they are likely to be tortured or killed. International and domestic law guarantee that basic human right. In this case, the Government seeks to nullify it by deporting non-citizens to potentially dangerous countries without notice or the opportunity to assert a fear of torture.

They aren't saying lower courts can defy the Supreme Court. They are merely saying that Trump is an evil bastard and should be deported to some place where the indigenous people will beat and eat him. 

And here is their last sentence:

Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial.

What they mean, but don't say, is that Thomas is way to the right of Trump. That's a dude who has no problem with abortions for interns. Don't forget Trump was once a Democrat.  

The divergence between Justice Kagan and the other two progressive justices is important here.

No. The other two are just 'phoning it in'. Kagan is trying to appear judicious.  

Vladeck wrote a Substack about it. Kagan’s is a lawyerly approach. This is not surprising. Before she was appointed to the Supreme Court, Kagan was the dean of Harvard Law School and the solicitor general of the United States. She is a lawyer to the bone. For her, the Law is sacred. She is also perhaps the sharpest knife in the drawer.

Justices Sotomayor

who is from Puerto Rico. Bush gave her her first leg up. Clinton and Obama advanced her further. I think this was the right thing to do.  

and Jackson’s

Biden's appointment. Again, it is good to see a Black woman- a former public defender- on the Bench.  

approach is not so legalistic. They refuse to lose sight of the real-world consequences of their actions.

If Kamala was POTUS and she decided that deportation was the way to get a second term, they would have accepted it meekly enough.  

Real people will be tortured and killed as a result of this decision.

America tortured and killed real people during the War on Terror. Did SCOTUS object to this? Did it order Obama to scrap the detention centre in Guantanamo Bay as he had promised to do? Nope. Democratic appointees are loyal to Democratic administrations.  

It is a mistake to bring a knife – even a very sharp one – to a gunfight.

The 'regime change' aspect of the War on Terror was a mistake. But so is letting in crazy terrorists whom their less crazy compatriots want to kill. 

One hundred years ago, H.L. Mencken described the view out the window of a train traveling east from Pittsburgh. The essay is called “The Libido for the Ugly” It is appropriate to borrow Mencken’s phrase to describe the Trump administration’s policies. Trump and his appointees, Stephen Miller in particular, have a libido for the cruel. Adam Serwer wrote a justly famous essay on the subject, The Cruelty is the Point. In a fight with an adversary like that, the dainty rules of legal formalism are grotesquely out of place.

Buy a gun. Shoot Republicans. Fuck 'the dainty rules of legal formalism'. Every American has the inalienable right to bear arms and use those arms to kill anybody he thinks is cruel.