Scott Gurvey's Public Offerings

The first Monday of October is upon us. This is the day the Supreme Court begins its new term. The justices have been on recess and away from the Capital since the end of June. But they have had a busy summer. We just don’t know much about what they were doing.

The Supreme Court is shrouded these days. Literally and figuratively.

The literal part is obvious from the photo above. A construction cover has been draped over the main entrance to the Court since January. The figurative part is an assessment of the Court’s actions so far for 2025. Many of the most significant have been carried out under the cover of darkness. That shroud is afforded by what is derisively called the “Shadow Docket.” The official name is, “Emergency Docket.”

Here’s how it works.

Donald Trump does something to advance his Smash and Grab strategy to destroy the federal government and take as much unchecked power as he can. He is sued by one or many an aggrieved party and they ask a federal court to stop him with an injunction or restraining order. The court agrees and issues the order. Trump runs to the Supreme Court by filing an emergency petition, which the conservative super-majority grants on a 6-3 vote, blocking the lower court action pending further review.

Motions on the emergency docket are considered without formal briefs or public hearings. The orders which result rarely have opinions explaining the logic of the majority speaking for the court. What little we know often comes from a strident dissent issued by one of the three liberal justices.

For example. Chief Justice John Roberts authorized President Donald Trump to dismiss a member of the Federal Trade Commission (FTC). This is a major departure from precedent and is a significant shift in presidential authority over independent agencies. The decision has come amid criticism of Trump’s effort to remove Democratic commissioner Rebecca Slaughter, who argued that her dismissal would breach Congressionally enacted legal protections against removal without cause. But the ruling is not final. It only permits the Trump administration to ignore lower court orders reinstating Slaughter while further legal arguments are pending.

On the other hand, the Court allowed Lisa Cook to remain as a Federal Reserve governor for now, declining to act on the Trump administration’s effort to immediately remove her from the central bank. In a brief unsigned order, the high court said it would hear arguments in January over Trump’s effort to force Cook off the Fed board. We have no idea why the Court saw a distinction between the FTC and the Federal Reserve, both Congressionally created agencies.

Neither do the District Court judges, who have consistently found Trump’s march toward dictatorship to be illegal, unconstitutional, or both. They have been issuing immediate orders telling him to stop whatever preposterous action he is trying, only to see the Supreme Court majority say no, you can’t stop the president at the preliminary stage of adjudication.

District Courts do not issue temporary restraining orders or preliminary injunctions lightly. They are the exception to the rule that the process of a lawsuit must be considered in due course with written and oral argument, often a trial, and a formal explanatory opinion. To order an action be stopped pending all of that process, the court must find both that the party seeking the injunction is likely to prevail at trial, and that the action is one which will be difficult or even impossible to reverse.

Some people tell me I am being too dramatic and panicking without reason. They say the Court majority just wants to have a record established in good order before it challenges a sitting president. I’m not so sure.

One of the first things Trump and his henchmen, specifically Elon Musk and his Department of Government Efficiency marauders, aided and abetted by Secretary of State Marco Rubio, did was shut down the United States Agency for International Development. USAID was an independent agency created by Congress, which was not consulted about its dismantling. It was responsible for disbursing foreign aid to needy people around the world.

Most of USAID’s 4,800 employees have been dismissed, its headquarters closed. Musk’s DOGE gang physically took sledgehammers to remove the sign from the front of the building. Billions of dollars worth of aid in the pipeline has been canceled. Millions of dollars worth of food and medicine, in many cases already purchased and in warehouses near their final destination have been destroyed instead of delivered. International health officials say tens of millions of people have died as a result. This blood is on Trump’s hands. And on the hands of the Supreme Court majority.

Here’s another example. This conservative court has spent a decade taking away hard-fought rights dating to the 1960s. Affirmative action is now considered illegal. You can’t take race into consideration when you admit students to college. Or when you consider job applicants. But you can make race-based decisions if you are an Immigration and Customs Enforcement (ICE) agent questioning people about their immigration status.

U.S. District Judge Maame Ewusi-Mensah Frimpong had temporarily halted ICE agents in Los Angeles from making arrests or stops without reasonable suspicion. Pedro Vasquez Perdomo v. Kristi Noem. Plaintiffs argued that agents targeted people based on perceived Latino ethnicity, accents, or occupations like day laboring at Home Depot sites, conducting suspicionless stops, warrantless raids, and unlawful detentions in substandard conditions at a federal building basement known as B-18. These tactics, they claimed, violated the Fourth Amendment by lacking reasonable suspicion or probable cause, often relying on racial profiling rather than evidence of immigration violations.

The district court agreed, finding merit in the claims after reviewing declarations from arrestees and ICE insiders. Judge Frimpong noted that while immigration enforcement is vital for border security and public order, it must adhere strictly to constitutional limits to avoid eroding civil liberties that protect all residents. She highlighted instances where agents stopped individuals solely for “looking Mexican” or speaking Spanish, deeming such factors insufficient for seizures.

The Ninth Circuit Court of Appeals upheld Judge Frimpong’s order. But the Supreme Court stayed it. This time one justice, Brett Kavanaugh, decided to explain himself, saying citizenship checks by ICE officers are as straightforward and frictionless as presenting yourself at the entrance to a Costco. Just show a membership card, and you’ll be on your merry way. Kavanaugh said the risk that nonwhite Americans will be racially profiled or subject to unlawful detention should be weighed against the brevity of an encounter with ICE, “If the officers learn that the individual they stopped is a U.S. citizen or otherwise lawfully in the United States, they promptly let the individual go,” he wrote.

The problem is that ICE does not say what it accepts as definitive proof of legal status. Is it a driver’s license? A green card? A folder of immigration documents? Donald Trump’s mass-deportation campaign has swept up U.S. citizens and permanent residents over the past several months, leaving some detained for days despite individuals presenting officers with evidence of their legal status.

Justice Sonia Sotomayor, who wrote a blistering dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, said that Kavanaugh’s description of “brief stops for questioning” was inaccurate. She cited the recent case of a California man with dual Mexican and U.S. citizenship who was taken to an ICE detention center and held while officers ran a background check. Kavanaugh’s decision, she said, “improperly shifts the burden onto an entire class of citizens to carry enough documentation to prove that they deserve to walk freely. The Constitution does not permit the creation of such a second-class citizenship status.”

For the last several years I have written a multi-part blog at the end of the Court term, analyzing the decisions handed down. This year I did not, simply because the conservative majority, which had spent four years blocking President Joe Biden’s actions, spent the 2024-2025 term allowing President Trump to do whatever he wants. This shadow docket business is just one part of that trend. The majority’s hypocrisy is showing.

For the record, here is the log for the term that ended last June.

Major Shadow Docket Decisions (2024–25 Term)

Case	Issue	Outcome
Trump v. CASA, Inc.	Nationwide injunctions	Court limited federal judges’ ability to issue nationwide injunctions, bolstering executive power
Trump v. American Federation of Government Employees	Federal workforce reductions	Stay granted, allowing administration to proceed with large-scale layoffs
McMahon v. New York	Reinstatement of fired Dept. of Education staff	Stay granted; dissent by Sotomayor, Kagan, and Jackson
Uthmeier v. Florida Immigrant Coalition	Florida immigration law (SB 4-C)	Stay denied; law remains blocked
Doe v. Seattle Police Department	Anonymity in lawsuits tied to Jan. 6 rally	Stay denied; officers must refile under true names
Emergency deportation case	Removal of Venezuelan suspects	Stay granted; deportations allowed under wartime law
Education grant cancellation	Federal teacher-training grants	Stay granted; states must challenge in Court of Federal Claims
National Labor Relations Board case	Arbitrary removal of agency officials	Emergency order granted to fire board members

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Trump filed 10 emergency requests in under three months, on pace to break his own record from his first term.

Coming Up (2025–26 Term)

• Birthright citizenship
• Tariff authority
• Firing authority
• Unilateral cancellation of federal programs and independent agencies
• Due process rights of undocumented immigrants
• Targeting of law firms and others with federal contracts
• Attempts to control universities as conditions on grant funding
• Abuse of regulatory authority
• Violation of emoluments clause
• Restrictions on speech and press
• Use of National Guard and regular military in states and cities
• Gerrymandering

The construction shroud over the front entrance to the Supreme Court covers the words chiseled into the stone above, “Equal Justice Under Law.” This phrase, based on the words of the Fourteenth Amendment, is a cornerstone describing the American system of justice.

The phrase means that everyone is treated equally. To guarantee this principal is adhered to requires that the justice system operates in the bright light of day. Not in the shadows. We shall see.

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