One Judge Has a Clever New Way to Overcome the Supreme Court’s Trump-Fueled Chaos

Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.

The Supreme Court’s unrelenting abuse of its shadow docket has left lower courts scrambling to figure out what, exactly, is “law” on any given day. Time and again, the conservative supermajority has altered or overturned precedent—usually in Donald Trump’s favor—without bothering to explain why. In the process, it keeps disrupting carefully reasoned injunctions, sowing uncertainty over what rights and rules actually apply. This vacuum has left lower-court judges with an unenviable choice: Apply the law as it actually stands today or try to guess how the Supreme Court will change it tomorrow.

On this week’s Slate Plus bonus episode of Amicus, Mark Joseph Stern spoke with Madiba Dennie about one judge who’s calling out SCOTUS’s abdication of its duties while refusing to preemptively legitimize Trump’s lawlessness. Dennie is the deputy editor of Balls and Strikes and the author of The Originalism Trap. A preview of their conversation, below, has been edited and condensed for clarity.

Mark Joseph Stern: On Wednesday, U.S. District Judge Myong Joun issued a really interesting order in the ongoing battle over Trump’s unlawful assault on the Education Department. The background here is important: In May, Joun issued a preliminary injunction barring the Trump administration from destroying the department by firing so many of its employees that it couldn’t function anymore. The Supreme Court then froze that injunction without explaining why. But Joun also issued a different injunction in a related case that specifically barred the government from dismantling the Education Department’s Office for Civil Rights and protected its employees from termination. 

After SCOTUS set aside the first injunction, the Justice Department asked Joun to halt his second injunction as well. On Wednesday, he refused, writing that the court’s “unreasoned stay order issued on its emergency docket does not make or signal any change in controlling law.” So he saw no reason to undo his own injunction. Madiba, this feels to me like Joun, a Biden appointee, basically calling the Supreme Court’s bluff by saying: How am I supposed to know why the court made this decision when it didn’t bother to explain itself?  

Madiba Dennie: I think that’s right, and he made the right call. I’ve been hoping more judges would do this, because SCOTUS is not bothering to explain itself or give any sort of direction. It’s just saying an injunction was wrong somehow. So I think lower-court judges are well within their rights to say: I don’t know how this was wrong, so I have no reason to take a different course of action. The Supreme Court didn’t even tell them what the error was!

Also, shadow docket stays are not supposed to have any precedential value. I was really bothered when the Republican supermajority said: You should have read our minds and realized we want to overrule Humphrey’s Executor. So act like it’s already overruled. That’s absurd. Unless and until they’re explicitly told otherwise—and, honestly, maybe even if they are told otherwise—lower-court judges should continue issuing injunctions.

A similar dynamic played out in another shadow docket case, DHS v. DVD.

Yes. This was the “third country removal” case, in which the Supreme Court lifted an injunction—for reasons unknown—and allowed people to be removed, without due process, to some country where they aren’t from and could be killed. The liberal justices were justifiably losing their minds, saying this was inexcusable; the Trump administration had been violating the injunction already! The lower-court judge responded by saying: Well, I have issued a separate order to remedy the violation of the injunction. So even if the injunction is no longer in effect, my remedial order wasn’t before you, so that’s still in effect. It protected some defendants for a little longer. If the court is going to take such liberties with the law, why shouldn’t lower-court judges think a little bit creatively?

I’m curious what you make of Joun’s rhetoric. He writes in the order: “The Supreme Court did not make any explicit findings as to whether Defendants were likely to succeed on the merits or that other equitable considerations also militated against preliminary relief, or provide any other reasoning or explanation as to the basis for granting the stay.” Clearly, he is calling out the conservative justices here for disrupting lower-court decisions without any justification. What do you think of a district court so bluntly calling attention to the fact that SCOTUS isn’t showing its work? Do you think he should have been a little subtler, or is this the strong medicine the court needs?

I’ve written before about how SCOTUS’s shadow docket decisions make life so much harder for lower courts. It’s harder for them to do their job because, as you said, the justices are saying: Read our minds. Anticipate what we think. We think this precedent has been overturned, even though it hasn’t, so you shouldn’t follow it anymore. Here is Joun, essentially saying: Actually, this makes my life easier, because I’m going to assume that the Supreme Court didn’t change the law until it admits that it has. I think that is a brilliant way of flipping the burden. It makes sense to just tell the justices: I’m not gonna try to read your minds. I’m just going to do my job.

It brings to mind this concept of malicious compliance, where you’re technically doing what you’re supposed to, but in a way that actually thwarts the goals of the powers that be. It also reminds me of uncivil disobedience—getting in the way, but using perfectly lawful tools. I want to see more of it. Make every opportunity you can and make some more.

Sign up for Slate’s evening newsletter.