May You Live In Interesting Times

Professor Vladeck points out:

The application is significant not only on its own terms, but because of the new reality it appears to reflect—one in which the Trump administration seems to be structuring at least some of its litigation decisions specifically to take advantage of its expectation that it can receive emergency relief from the Supreme Court. Here, that behavior includes contriving the procedural emergency that the Solicitor General now claims justifies intervention by the justices; downplaying the fact that the government forfeited the substantive claim on which it claims it is likely to succeed on the merits—by not properly raising it below; and misrepresenting what happened in the lower courts by conveniently leaving out any details that might draw the justices’ (or their clerks’) attention to those first two points.

In ordinary times, either of those first two defects would (and should) be fatal to the prospects of receiving emergency relief from the Supreme Court. And yet, the government’s (especially strident) application insists that the real issue here isn’t its behavior, but that of the district court—which has, in its words, “installed itself as supervisor-in-chief of further spending and recissions proposals”—and the en banc D.C. Circuit, which it accuses of all-but deliberately sitting on its hands. As I demonstrate below, these claims are utterly belied by the record—and serve only to deflect attention from the government’s own responsibility for this latest “emergency.”

Given the justices’ dispositions of Trump administration applications over the past six months, it may not be surprising that the government thinks it can get away with this kind of behavior. The harder question is whether, in a case in which the government’s cynical attempt to so obviously manipulate the emergency docket is happening in plain sight, the justices will still indulge it.

The topic is a government application for emergency relief on an injunction, an appeal where the government failed to, let’s say, fill out the right forms in the right way. There are rules, to cut to the chase, and the Sinister Six is disregarding them to the extent the government is counting on them to continue to do so.

My mind goes back to the case of the adjunct coach whose contract was not renewed. (I taught as an adjunct for over a decade (seems odd to say), and I was subject to renewal every semester. It’s the life of an adjunct.) He claimed he was fired for holding prayer sessions after football games on the field. His claim was the only evidence of that, so Alito wrote a majority opinion that added facts to the record (completely illegal and against all the rules to do that, but it’s the Supreme Court, bitches!) so he could get the result he wanted.

Or, as Justice Jackson wrote in an opinion recently:

Just last week, I wrote about the requirements for granting stay applications and, in particular, how this Court’s emergency-docket practices were decoupling from the traditional harm-reduction justification for equitable stays. See Noem, 605 U. S., at ___ (slip op., at 5). With today’s decision, it seems as if the Court has truly lost its moorings. It interferes with the lower courts’ informed and equitable assessment of how the SSA’s data is best accessed during the course of this litigation, and it does so without any showing by the Government that it will actually suffer concrete or irreparable harm from having to comply with the District Court’s order.

[snip]

Stepping back to take a birds-eye view of the stay request before us, the Government’s failure to demonstrate harm should mean that the general equity balance tips decisively against granting a stay. See Noem, 605 U. S., at ___ (slip op., at 4). On the one hand, there is a repository of millions of Americans’ legally protected, highly sensitive information that—if improperly handled or disseminated—risks causing significant harm, as Congress has already recognized. On the other, there is the Government’s desire to ditch the usual protocols for accessing that data, before the courts have even determined whether DOGE’s access is lawful. In the first bucket, there is also the state of federal law, which enshrines privacy protections, and the President’s constitutional obligation to faithfully execute the laws Congress has passed. This makes it not at all clear that it is in the public’s interest for the SSA to give DOGE staffers unfettered access to all Americans’ non-anonymized data before its entitlement to such access has been established, especially when the SSA’s own employees have long been subject to restrictions meant to protect the American people.

And that was about the Sinister Six allowing DOGE to access SS data because, sure, why not? Yeah, DOGE didn’t just do that, the Supreme Court let them do that. Without review, briefing, or arguments. Basically without any consideration, and, as Justice Jackson points out, while running roughshod over the rules of equity; which is to say, basically, the rule of law.

This is that constitutional crisis the media keeps worrying about. And it’s going to raise a significant question: How many troops does the Supreme Court have?

Because it’s gonna come to that. Face it: the Court is busy throwing its legitimacy in the shredder.

What does that lead to?