Tag: supreme court
Samuel Alito

Unprecedented: Most Supreme Court Decisions Issued On 'Shadow Docket'

The Supreme Court continues to make consequential rulings in the shadows. I analyzed tens of thousands of case files from the court’s online archives, parsing through filings to separate simple requests for deadline extensions from challenges to long-established constitutional rights. I discovered that in the term that ended in 2025, the justices issued more substantive decisions on their emergency docket than in cases argued in open court. Experts told me this was likely the first time this has happened in the court’s modern history.

Representatives from the Supreme Court did not respond to my questions.

Since I reported that story in July, more major rulings have been made on the emergency docket, often called the “shadow docket,” where justices rarely hear arguments and often issue unsigned orders that don’t explain how they arrived at their decisions or even how they voted.

These decisions are continuing to come down even after the court began its summer recess. For example:

Though experts told me rulings on the shadow docket have generally enabled Trump, he has not won them all. The USPS ruling, for one, has not pleased the president. Last week, in a post on Truth Social, the social media website he owns, Trump criticized the justices he nominated, writing that they “are not the people I interviewed to serve.”

“It is a Court that will go down as having rendered some of the most destructive, hurtful, and damaging decisions in our Country’s history,” Trump wrote.

Every decision the court has made since July has been on its shadow docket. That will remain the case until the court starts its new term on October 5.

Watch our explainer to learn more about what I uncovered and how the shadow docket works.

Reprinted with permission from ProPublica

Kevin Warsh

Trump Adds His Newly Appointed Fed Chair To His (Long) Enemies List

I had intended to write on the Fed’s decision to raise rates, but I don’t have much to add to what I wrote last week. I do think inflation is high, and for the moment the labor market seems reasonably healthy. But I don’t see higher rates as being a useful way to combat inflation caused by tariffs and Trump’s war on Iran.

As I noted, there is no case for the sort of wage-price spiral we saw in the 1970s. Wage growth has actually slowed sharply over the last two years. Wages had been growing at over a 4.0 percent annual rate in 2023 and 2024. The year-over-year rate has fallen to 3.1 percent. The annualized rate, comparing the average for the last three months (June-August) with the prior three (March-May), is just 2.7 percent. And this comes as inflation has accelerated from just over 2.0 percent to more than 3.0 percent.

Given little risk of accelerating inflation, at least from excessive demand, there seems little point in pushing rates higher. The one qualification I would make to this assessment is that expectations of a rate hike had become so embedded, especially following Fed Chair Kevin Warsh’s comments at the annual Jackson Hole conference, that it is likely long-term rates would go up more if the Fed held rates unchanged than if they hiked. Given that situation, I guess I would have gone with the hike.

But the bigger news yesterday was President Trump’s response. For some time, Trump has been pushing a bizarre theory that because we have the hottest economy (we don’t), we should have the lowest interest rates. This makes no sense, because the normal practice is to lower rates when the economy is weak, and raise them when it’s strong.

Apart from Trump’s confusion on the economics, the bigger story was that he immediately added the Fed to his enemies list, saying the rate hike was part of a grand conspiracy to make him look bad. This is more than a bit incredible, first and foremost because Trump had just appointed Kevin Warsh as Fed chair this spring. Apparently, Trump believes that his pick has already turned on him and joined the enemy.

And it wasn’t just Warsh; the vote was unanimous. That means that all four of the people who Trump appointed to the Fed, including his previous pick as Fed chair, Jerome Powell, lined up against him.

This follows Trump’s loss at the Supreme Court on his plan to have the Postal Service screen voter lists for mail-in ballots in the November elections. In that case, all three of Trump’s picks to the Court lined up against him, upholding a stay from a lower court that prohibited Trump’s plan from going into effect.

Trump complained that the justices “are not the people I interviewed.” He said that the court was giving in to crazy liberal influence.

It’s not new that Trump sees anyone who disagrees with him as part of a conspiracy. He’s long accused judges on lower courts of conspiring to undermine his agenda. And Trump regularly accuses any reporter who writes a critical story or asks a tough question as being “fake news.” And when polls show his popularity falling, Trump denounces them as “fake polls.”

But it seems a step further that Trump says people that he appointed, in some cases recently, have now joined the grand anti-Trump conspiracy. If Trump were not the president of the United States, we could just see this as part of an over-the-top comedy. Unfortunately, we don’t have that option.

In fact, the revenge Trump is floating for the Fed’s rate hike is pretty scary. He suggested that he will simply stop trading with arbitrarily chosen countries with whom we have a trade deficit. Trump seems to have a theory whereby we are losing money with a country, if we run a trade deficit with them. This makes as much sense as saying I lose money every time I go to the grocery store and pay them for the food.

But Trump is a reality TV show star, not someone who has even the most basic understanding of economics. Shutting down trade with a major trading partner would be a further jolt to the high prices that people are already upset over. It’s pretty horrible economics and doesn’t sound like very good politics, but I guess it will make Donald Trump feel tough.

It’s not clear Trump has the authority to arbitrarily impose trade embargos on other countries. But if the Supreme Court follows its recent path with tariffs, it will let Trump impose his embargo and then maybe wait a year or so before deciding it’s unconstitutional.

That will be bad news for families paying higher prices and the countries that have to reorient their economies, but at least it should further convince those who are still unconvinced that our president is completely out of his gourd. Other countries need to plan economic and defense relationships that do not involve the United States. At this point, we are not a credible country.

Dean Baker is a senior economist at the Center for Economic and Policy Research and the author of the 2016 book Rigged: How Globalization and the Rules of the Modern Economy Were Structured to Make the Rich Richer. Please consider subscribing to his Substack, from which this is reprinted with permission.

USPS Officials Warned New Mail Voting Rules Could Mean Mass Disenfranchisement

USPS Officials Warned New Mail Voting Rules Could Mean Mass Disenfranchisement

Top U.S. Postal Service officials tasked with issuing new regulations on mail voting expressed concerns in internal meetings about how the rules they were drafting could delay or block ballots from reaching large swaths of eligible voters for the upcoming midterms, but the rules moved forward anyway, ProPublica has learned.

The revelations about the discussions, from someone familiar with the rulemaking process, come as a separate anonymous federal employee filed a whistleblower disclosure with Sen. Richard Blumenthal (D-CT), warning that the new system is untested and error-prone, and could lead to mass disenfranchisement in the upcoming election. The whistleblower described the entire process as “secretive, rushed, chaotic, and fundamentally flawed.”

In a March executive order, President Donald Trump directed the Postal Service to create the new rules, including requiring states to give USPS a list of all voters eligible to receive a ballot in the mail and requiring USPS to use those lists to determine which ballots get sent to voters. USPS officials were tasked with crafting the details of how the new system would work, including the creation of a new portal for states to upload their voters’ information and the back-end software that would allow mail delivery sites and local post offices to track, and potentially block, ballots entering into the mail on their way to voters.

Voting rights organizations, state officials and Democratic political groups filed lawsuits challenging the new rules, and a federal court has temporarily blocked the requirements for states. The merits of the new rule are expected to reach the Supreme Court before the November election. Even if the Supreme Court allows the plan, though, election officials and experts say that the new system could not be ready in time for this election, given that ballots for people who are in the military or overseas must be sent out this month.

During meetings in which top USPS officials discussed how to comply with the executive order, there was much discussion about the controversial nature of what they needed to do, according to the person familiar with the discussions who spoke on the condition of anonymity for fear of reprisals. The focus was on limiting the impact to voters while also complying. One repeated concern regarded how to avoid invalidating an entire batch of ballots if one voter among thousands couldn’t be confirmed as eligible. Some in the meetings recommended trying to limit harm to voters by not rejecting the entire batch, according to the person familiar with the discussions.

Despite that, according to the whistleblower who contacted Blumenthal, the directive to reject entire batches if they included just one unverified ballot moved forward.

“As presently designed, if even one bar code on one single ballot in a bulk-mailing of 10,000 ballots fails to properly scan during the verification process, the entire batch is rejected and sent back to the state — effectively stopping the ballots from being mailed to voters,” the whistleblower wrote.

Election clerks raised similar concerns directly to USPS officials just days before the final rule was issued, at a mid-August National Association of Election Officials conference in Kansas City, Missouri, ProPublica has learned.

There, an example was given of Maricopa County, Arizona, which often sends out more than 2 million ballots at a time in its initial mailing. USPS officials confirmed it was possible that one ballot with a bad barcode or wrong voter information within the more than 2 million ballots could delay the entire mailing, according to two people who attended the related committee meeting.

The Postal Service has defended its final rule in court, stating that it does not intend to seize control of administration of elections and that the rule “need not and should not prevent a single voter from voting by mail.”

In a statement to ProPublica, a Postal Service spokesperson said the agency is carefully reviewing the Blumenthal whistleblower’s concerns and that USPS has spent months developing its system, in a manner consistent with court orders, and will soon provide instructions for how election officials can use it.

“Regardless of political party or perspective, we share a common goal: ensuring that Americans can have confidence that their election mail will be handled securely and delivered reliably,” the spokesperson said.

Lauren Bis, a White House spokesperson, said in a statement to ProPublica that the process of building software to carry out the new mail ballot checks “is neither complex nor unique for USPS since the Postal Service regularly uses bulk mailing and intelligent mail barcodes for a wide variety of large customers.”

“Under President Trump, the federal government is working to ensure safe, transparent, and honest elections,” Bis wrote.

Blumenthal, the Connecticut Democrat who received the whistleblower disclosure, asked the postmaster general for detailed info about the plan in a letter this week. He told reporters on a call Monday that the new USPS rule puts all mail voters at risk, and he accused the administration of being “hellbent on changing the framework of casting ballots in this country, clearly for political reasons.”

Election officials and printing experts have told ProPublica that errors in the system are likely, given how difficult it is to design envelopes with a clear barcode for scanning and to keep voter information up to date. Seemingly small details have yet to be worked out that could throw the entire system into chaos, they said, such as what file format to use when uploading voter lists and whether to provide mailing or residential addresses to USPS.

“These are trivial things that create massive problems,” said Jeff Ellington, CEO of Runbeck Election Services, which prints ballots and ballot envelopes for counties. Beyond that, he said, most of the counties in the country don’t have the type of barcodes needed to make the system function. And the Postal Service hasn’t told local election officials how to design new ballot envelopes and get them approved by USPS in this short of a timeframe.

The Blumenthal whistleblower said the idea that entire batches will be delayed by one mistake is especially concerning because of significant operational problems that exist with the portal that will contain information about eligible voters and the lack of testing of the system. The whistleblower is concerned about how, while systems typically have a known error rate, there has been no internal acknowledgment that errors will occur in the new mail ballot system, and instead the USPS has adopted a “zero-percent failure policy.”

The whistleblower also alleges that the administration moved forward with steps to create the new system during two initial injunctions from the court, which would have violated the court’s order. USPS had stated when issuing its final rule that it was adhering to the injunctions and would not take actions to implement the rule for the 2026 election unless the injunctions were lifted.

Both the whistleblower and the person familiar with discussions about the executive order’s implementation said that the timeline for creating a sophisticated tracking system would typically be at least nine months. The whistleblower’s disclosure says that workers began to work on the system in mid-June and had only weeks before being given a Sept. 1 deadline. The person familiar with the discussions said it was common for priority projects within USPS to have crunched timelines. The internal goal, the person said, was to try to implement the new system by that deadline or to show why it couldn’t happen — which was typical of other directives the agency had faced in the past.

The whistleblower disclosure described confusion as the staff attempted to develop the systems without enough direction, within weeks, and without proper communication, and said several employees referred to the situation as a “shit show.”

Reprinted with permission from Pro Publica

Will The Supreme Court Majority Enable Election Theft To Protect Itself?

Will The Supreme Court Majority Enable Election Theft To Protect Itself?

With its latest ruling on the Trump administration’s attempt to seize control of the midterm election, the Supreme Court’s right-wing majority once again advertised its contempt for democracy and the Constitution. By allowing the president to proceed with his bureaucratic war on mail balloting -- even as many states are about to send those ballots to voters –the court majority not only violated the constitutional stricture against federal control of elections but threatened to impose partisan meddling and White House chaos on the democratic process.

While the high court has yet to deliver a final decision on the Trump executive order at issue, the majority bestowed an undeserved legitimacy on the president’s openly stated and nefarious plan to derail an election that appears certain to deliver a negative judgment on him and his party.

The court’s action, although temporary, raised the deepest concern about the intentions of Chief Justice John Roberts and the “conservative” bloc (whose version of conservatism no longer extends to upholding legal precedents or constitutional norms). Americans rightly worry that the court will allow or even encourage Trump to deny voting rights, intimidate voters, and tamper with balloting, if only because the court majority has so relentlessly expanded his authority and exempted him from ordinary oversight.

In one decision after another, they have awarded him the powers and immunities of a monarch in a casual manner that would have made the founders heartsick.

Indeed, the majority has consistently lent its authority and reputation to his dictatorial ambitions, while increasing the power of the wealthy in politics and diminishing or eliminating the protections afforded to society’s least powerful groups. Making many of these bad decisions worse is the justices’ recent habit of issuing important rulings on the “shadow docket,” unsigned and unexplained, which undermines their integrity and shields them from criticism. It is hard to know how to evaluate a decision when no logic or law is offered to undergird its validity.

It would not be unlike the Roberts right-wingers to upend this election with a shadow docket ruling, a cowardly maneuver they have adopted in more than two dozen cases since Trump returned to the White House – and ruled in his favor in more than three out of four.

Everyone should understand that if the Supreme Court majority intercedes now to sway an election that may bring Democratic control of both houses of Congress, they are indulging a gross conflict of interest to protect themselves. No longer can these justices be regarded as disinterested umpires. The Republican justices in particular -- specifically Clarence Thomas, Samuel Alito, Neil Gorsuch and the chief justice himself -- must dread the advent of a Democratic Senate that will investigate their festering conflicts of interest.

The grossly unethical payments and benefits accepted by Thomas are by now notorious. But how many Americans are aware of the disbarment complaint now pending against Roberts before the District of Columbia bar? Evidence delivered by a whistleblower to suppor that complaint shows that Jane Sullivan Roberts, the chief justice’s spouse, earned more than $10 million between 2007 and 2014 as a “legal recruiter” for a headhunting firm for elite firms that had appeared before the high court hundreds of times. Roberts failed to recuse himself from cases argued by lawyers who firms had remunerated his wife’s company – and mislabeled her commission income from that outfit as “salary.”

Only after Business Insider published the whistleblower documents three years ago did Roberts amend his public disclosure to reveal the commission deal -- and admit for the first time that he owned equity in his wife’s subsequent employer, information he had omitted in three previous filings.

How would a Democratic House and Senate confront the shifty characters who now adorn the top bench? Congress might consider and perhaps enact judicial reforms requiring the justices to meet the minimum ethical standards enforced in the lower federal courts. While those standards at present don’t apply to the Supreme Court, Democrats have vowed to take up court reform as a top priority should they win in November.

Be assured that the justices have heard about that promise. Do not doubt that the court’s majority fears a season of terribly embarrassing and possibly ruinous scrutiny could be just over the horizon.

Joe Conason is founder and editor-in-chief of The National Memo. He is also editor-at-large of Type Investigations, a nonprofit investigative reporting organization formerly known as The Investigative Fund. His latest book is The Longest Con: How Grifters, Swindlers and Frauds Hijacked American Conservatism (St. Martin's Press, 2024). The paperback version, with a new Afterword, is available wherever books are sold.

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