Georgetown University Law Professor Steven Vladeck accused the U.S. Supreme Court’s conservative majority of failing to explain itself while it worked to “kick things down the road and avoid unnecessary confrontations" with President Donald Trump.
“I certainly have been unsparing in some of my criticisms of the court. But I guess that betrays my worldview as thinking that these are unprecedented times,” Vladeck said.
Of the 17 rulings the court has delivered on Trump-related emergency applications, exactly one of them has said anything meaningful about the legal validity of the underlying executive-branch actions, Vladeck argued in a conversation with NY Times' writer Kate Shaw and University of Chicago Professor Wiliam Baude. Vladeck said the court’s recent decision on the third-country removals case, in particular, struck him as “one where the court’s (entirely unexplained) grant of emergency relief gives … the appearance of acquiescing in the government’s defiance of the district court.”
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He said he was particularly troubled by conservative Justice Amy Coney Barrett’s support of a decision allowing the Trump administration to egregiously defy so obvious a Constitutional right “without considering the state plaintiffs’ strong arguments that they needed a universal remedy” and without explaining how the Trump administration could be “irreparably harmed” by being forced to stop its “patently unconstitutional” behavior.
“Using this case to [debate the universal injunction question] … was, in my view, a serious mistake — and led the majority to what really comes across as outcome-driven analysis,” Vladeck said.
“If you think the jurisdictional issue is strongly on the government’s side in that case, you ought to say so — and make clear that you’re not endorsing the government’s abhorrent … behavior,” Vladeck said.
“I’m not asking for 50-page opinions,” the professor and author insisted. “The court found a way to write a 3.5-page opinion in the Alien Enemies Act case. It found a way to write a two-page order in the Wilcox case. I really don’t think it’s asking that much of the justices to provide even a modicum of explanation for the cases in which they are choosing to alter the status quo — especially, as has been true in so many of these cases, when there are lengthy opinions respecting the rulings by the lower courts.”
When asked if court conservatives were still “working together in a collegial way with the liberal minority, even when they disagree sharply,” Vladeck’s answer was quick and sharp.
“Nope. The justices are divided in much the same way as the country — with some of them viewing the current administration as an existential threat to our democracy and others viewing it as ‘what the people voted for.’”
This, he said, was leading “to a lot of talking past one another” on the court, as well as “some fairly fundamental disagreements about the stakes of individual cases and of the Supreme Court’s broader relationship with other government institutions.”
The bill for that behavior, he added, “is going to come due, and soon.”
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Read the full New York Times report at this link.