Marbury v Madison v Justice

Professor Vladeck explains what the Court did today:

As folks may recall, the student loan case first reached the Court on a pair of emergency applications from the Biden administration—to vacate nationwide injunctions against the program that had been imposed by the Eighth Circuit (in a suit brought by a number of red states) and the Northern District of Texas (in a suit brought by private plaintiffs), respectively. In both cases, one of the administration’s central arguments for emergency relief was that the government was likely to prevail on the merits because the plaintiffs lacked Article III standing (that is, they weren’t injured by the policy they were seeking to challenge)—and that the standing obstacle was reason enough to allow the government to continue to implement its policy.

In both cases, the Court deferred its resolution of the applications while it considered the merits of the government’s appeals—rulings that had the effect of keeping the program on hold for an additional 6.5 months. After argument, the Court held (unanimously) that the private plaintiffs lacked standing; and it held 6-3 that one of the states had standing (in analysis I heavily criticized at the time). In other words, the Court kept a controversial Department of Education policy initiative paused for 6.5 months while it sorted out whether anyone had standing to challenge it—rebuffing the President’s request that the policy go back into place in the interim.

Contrast that with Monday’s ruling. In asking the justices to stay the district court’s injunction against the mass firings and restructuring of the Department of Education, the Trump administration’s principal argument was not that those measures were legal, but that the plaintiffs lacked Article III standing to challenge them.* The best explanation for Monday’s ruling is that a majority of the justices agree that the government is likely to prevail on its standing argument—and, as has been the case so often in the Court’s recent approach to emergency applications, gave short shrift to the equities.

If that’s true, then we have this rather obvious contrast—where serious standing objections were not enough to justify emergency relief when it was the Biden administration looking to put its student loan debt relief plan back into effect, but where (to my mind, weaker) standing objections were enough to justify allowing the President to effectively strangle a critically important federal agency (and to defeat the various acts of Congress standing that agency up and giving it responsibilities it will now struggle to discharge). Perhaps there is a good explanation for why the standing concerns were sufficient to justify a stay here but not in the student loan cases (where, again, the Court unanimously agreed that the private plaintiffs lacked standing). I’ll confess that it’s possible such a distinction exists. It’s also possible that a majority found the government’s other arguments in support of a stay in this case persuasive—although there’s a reason why the government didn’t lead with them (and, in any event, Justice Sotomayor’s dissent seems to make quick work of them).

But to go back to a post I wrote a few weeks ago, that’s yet another reason why the Court needs to explain itself when it grants emergency relief—not just to provide guidance to lower courts and the relevant government actors (to say nothing of the public), but to rationalize what, at least at first blush, sure look like alarming inconsistencies in the Court’s behavior that seem best-explained not by a legal principle, but by which party controlled the White House (and, through it, the Department of Education) at the time of the Court’s ruling. Now, more than ever, that ought to be an impression the justices are ill-inclined to reinforce.

The good professor is too circumspect to state the obvious: this court is deeply, and nakedly, political. He makes that point by drawing the picture. But he won’t state it openly, so that the conclusion isn’t dismissed as “political.” I’m not saying it isn’t, nor that that’s a bad thing. But it leaves his analysis with enough “plausible deniability” to let his analysis stand as an objective one.

Which it is. It is objectively plain that this court is thoroughly political, and nakedly so.

My title is a bit misleading. This is not a constitutional issue, it’s an equity issue. It’s also a plain issue of law.  And it induces a plain constitutional crisis. As Justice Sotomayor writes:

Only Congress has the power to abolish the Department. The Executive’s task, by contrast, is to “take Care that the Laws be faithfully executed.” U. S. Const., Art. II, §3. Yet, by executive fiat, the President ordered the Secretary of Education to “take all necessary steps to facilitate the closure of the Department.” Exec. Order No. 14242, 90 Fed. Reg. 13679 (2025). Consistent with that Executive Order, Secretary Linda McMahon gutted the Department’s workforce, firing over 50 percent of its staff overnight. In her own words, that mass termination served as “the first step on the road to a total shutdown” of the Department. Dept. of Ed., Press Release (Mar. 11, 2025); infra, at 7.

When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it. Two lower courts rose to the occasion, preliminarily enjoining the mass firings while the litigation remains ongoing. Rather than maintain the status quo, however, this Court now intervenes, lifting the injunction and permitting the Government to proceed with dismantling the Department. That decision is indefensible. It hands the Executive the power to repeal statutes by firing all those necessary to carry them out. The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave. Unable to join in this misuse of our emergency docket, I respectfully dissent.

The professor is right:, dissent should be read in whole. But neither of them states the obvious, which needs now to be stated: this Court has abandoned all claim to being a third branch of government, standing apart from the other two as the third leg of the stool. It is wholly an arm of this Republican administration.

And that, at last, is a Constitutional crisis. If anyone is paying attention.

*This is the Court order in toto:

The application for stay presented to JUSTICE JACKSON and by her referred to the Court is granted. The May 22, 2025 preliminary injunction entered by the United States District Court for the District of Massachusetts, case No. 1:25–cv–10601, is stayed pending the disposition of the appeal in the United States Court of Appeals for the First Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

Curiously, there is no mention there of standing as an issue (or at all), and the dissent doesn’t raise the issue, either.  It was argued by the Administration; was it considered by the Court as equitable grounds to issue the stay? If so, why didn’t the Court say so? I know I’m repeating what Professor Vladeck said, but I’m trying to clarify his argument for non-lawyers. Equity, like general law, works by rules. What has happened to those rules is not explained by this Order; but it appears those rules no longer matter because of the person in the White House. At the very least, the courts, and the public, have no guidance at all from the Supreme Court. And that makes it even harder to offer any argument that this Court is not now plainly, and indeed wholly, political.