The United States Supreme Court conservative supermajority has been “unrelenting” in it’s “abuse of its shadow docket” — and is leaving “lower courts scrambling to figure out what, exactly, is ‘law’ on any given day,” Slate’s Mark Joseph Stern reports.
“Time and again, the conservative supermajority has altered or overturned precedent — usually in Donald Trump’s favor — without bothering to explain why," Stern writes. But, as the Slate Supreme Court journalist and attorney Madiba K. Dennie explain, one district judge is standing up to the Supreme Court.
According to Stern, “U.S. District Judge Myong Joun issued a really interesting order in the ongoing battle over Trump’s unlawful assault on the Education Department. … 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.”
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“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,” Stern adds.
As Stern reports, “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,” Stern notes.
According to Dennie, “Shadow docket stays are not supposed to have any precedential value.” The attorney wants district judges to “think a little bit creatively” if the Supreme Court "is going to take such liberties with the law.”
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To Stern, Joun was clearly “calling out the conservative justices here for disrupting lower-court decisions without any justification.”
Dennie calls Juan’s approach “a brilliant way of flipping the burden.”
“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,” she says. “It also reminds me of uncivil disobedience—getting in the way, but using perfectly lawful tools.”
Read the full interview at Slate.
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