• Latest
  • Trending
  • All
  • News
  • Business
  • Lifestyle
JUSTIN EVAN SMITH: Progressives Find Religion On The Shadow Docket

JUSTIN EVAN SMITH: Progressives Find Religion On The Shadow Docket

May 24, 2025
Kristi Noem Turns Tables After NBC Host Echoes Dems’ Freakout Over ‘Alligator Alcatraz’

Kristi Noem Turns Tables After NBC Host Echoes Dems’ Freakout Over ‘Alligator Alcatraz’

July 13, 2025
‘It’s About Accountability’: CNN’s David Urban Lays Out Why MAGA Won’t Drop Epstein Demands

‘It’s About Accountability’: CNN’s David Urban Lays Out Why MAGA Won’t Drop Epstein Demands

July 13, 2025
Every SCOTUS Justice Seems Annoyed At Ketanji Brown Jackson — Even The Other Libs

Every SCOTUS Justice Seems Annoyed At Ketanji Brown Jackson — Even The Other Libs

July 13, 2025
How Trump’s Megabill Could Stall American Space Exploration

How Trump’s Megabill Could Stall American Space Exploration

July 13, 2025
JENNY BETH MARTIN: Democrat Leaders Must Condemn Political Violence – Now

JENNY BETH MARTIN: Democrat Leaders Must Condemn Political Violence – Now

July 13, 2025
‘Shouldn’t Have Happened’: Trump Reflects On Butler Assassination Attempt One Year Later

‘Shouldn’t Have Happened’: Trump Reflects On Butler Assassination Attempt One Year Later

July 13, 2025
LARRY ELDER: Ex-Dem Rep: The N-Word Causes Cancer

LARRY ELDER: Ex-Dem Rep: The N-Word Causes Cancer

July 13, 2025
DAVID BLACKMON: CNN’s Shock Climate Polling Data Reinforces Trump’s Energy Agenda

DAVID BLACKMON: CNN’s Shock Climate Polling Data Reinforces Trump’s Energy Agenda

July 13, 2025
DANIEL MCCARTHY: A Big Beautiful Test Of GOP Principles And Discipline

DANIEL MCCARTHY: A Big Beautiful Test Of GOP Principles And Discipline

July 12, 2025
DAVID BOSSIE: 4 Years After Being Canceled, MLB All-Star Game Back In Atlanta

DAVID BOSSIE: 4 Years After Being Canceled, MLB All-Star Game Back In Atlanta

July 12, 2025
JOSH HAMMER: Log Off Social Media And Return To The Real Things

JOSH HAMMER: Log Off Social Media And Return To The Real Things

July 12, 2025
Judge Continues Block On Defunding Planned Parenthood

Judge Continues Block On Defunding Planned Parenthood

July 11, 2025
  • Donald Trump
  • State of the Union
  • Elon Musk
  • Tariffs
  • Congress
  • Faith
  • Immigration
Sunday, July 13, 2025
  • Login
IJR
  • Politics
  • US News
  • Commentary
  • World News
  • Faith
  • Latest Polls
No Result
View All Result
IJR
No Result
View All Result
Home Commentary

JUSTIN EVAN SMITH: Progressives Find Religion On The Shadow Docket

by Daily Caller News Foundation
May 24, 2025 at 9:02 am
in Commentary, Op-Ed, Wire
247 5
0
JUSTIN EVAN SMITH: Progressives Find Religion On The Shadow Docket
491
SHARES
1.4k
VIEWS
Share on FacebookShare on Twitter

Daily Caller News Foundation

Not long ago, progressives blasted the Supreme Court for abusing the “shadow docket” – the issuing of unsigned, late-night rulings without full arguments or explanation. Then, late last month, the court did it again. Only this time, progressives are praising the court for intervening.

In an unsigned, late-night order, the justices issued an emergency stay halting the deportation of certain Venezuelan migrants under the Alien Enemies Act – a 1798 statute the Trump administration had controversially invoked. The case lacked a full factual record. No oral arguments were held.

Justice Samuel Alito dissented. And while progressives quickly caricatured his brief opinion as anti-immigrant, the substance of his dissent had little to do with immigration and everything to do with process. His warning was plain: A court that acts “literally in the middle of the night” on untested claims and incomplete records risks its own legitimacy – no matter how noble the outcome may seem.

The critique wasn’t ideological. It was institutional.

What Alito defended was not executive power, but judicial integrity. He objected to the method, not the result. He argued, quite reasonably, that the court has a responsibility to hear both sides, develop a factual record, and deliberate before intervening in politically sensitive, legally complex matters. Skipping those steps, even in service of a seemingly just cause, is a dangerous precedent.

That was the argument progressives themselves made during the Trump years. When the Supreme Court issued emergency rulings to reinstate controversial policies or reject COVID-era voting accommodations, liberal scholars and journalists blasted the shadow docket as opaque and undemocratic. Justice Elena Kagan, writing in dissent in a 2021 emergency ruling, accused the majority of turning the emergency docket into “a place for major decisions with no reasoned explanation.”

But that concern seems to have evaporated now that the political outcome has flipped.

If you believe the shadow docket undermines public trust, that belief shouldn’t hinge on who benefits from the ruling. If you believe the court must proceed with deliberation and transparency, that belief can’t be optional. Yet with this latest ruling, we’ve seen just how easily process arguments are cast aside when the outcome is convenient.

Alito’s dissent flips the usual script. He isn’t attacking due process – he’s defending it. And not just for migrants or for the executive branch, but for the judiciary itself. If the court wants to preserve its legitimacy, it can’t claim the moral high ground while bypassing the procedures that give its rulings weight.

This isn’t a hypothetical concern. A court that behaves like a political actor, issuing decree-like orders based on vague allegations and one-sided accounts, will soon be treated like one. And when that happens, the institutional authority the court depends on will erode from both sides.

None of this is to say the court can never act in an emergency. But there is a difference between urgency and incaution. The court’s emergency powers should be used sparingly and with caution, especially when the law is unsettled and the facts are unclear.

It’s easy to dismiss Alito’s dissent as just another conservative objection. But that misses the point. He wasn’t warning about immigration. He was warning about the court.

Process matters. Even when it’s inconvenient. Especially when it’s inconvenient.

This article was originally published by RealClearPolitics and made available via RealClearWire.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.

All content created by the Daily Caller News Foundation, an independent and nonpartisan newswire service, is available without charge to any legitimate news publisher that can provide a large audience. All republished articles must include our logo, our reporter’s byline and their DCNF affiliation. For any questions about our guidelines or partnering with us, please contact licensing@dailycallernewsfoundation.org.

Tags: big-tent-ideasDCNFU.S. News
Share196Tweet123
Daily Caller News Foundation

Daily Caller News Foundation

Advertisements

Top Stories June 10th
Top Stories June 7th
Top Stories June 6th
Top Stories June 3rd
Top Stories May 30th
Top Stories May 29th
Top Stories May 24th
Top Stories May 23rd
Top Stories May 21st
Top Stories May 17th

Join Over 6M Subscribers

We’re organizing an online community to elevate trusted voices on all sides so that you can be fully informed.





IJR

    Copyright © 2024 IJR

Trusted Voices On All Sides

  • About Us
  • GDPR Privacy Policy
  • Terms of Service
  • Editorial Standards & Corrections Policy
  • Subscribe to IJR

Follow Us

Welcome Back!

Login to your account below

Forgotten Password?

Retrieve your password

Please enter your username or email address to reset your password.

Log In
No Result
View All Result
  • Politics
  • US News
  • Commentary
  • World News
  • Faith
  • Latest Polls

    Copyright © 2024 IJR

Top Stories June 10th Top Stories June 7th Top Stories June 6th Top Stories June 3rd Top Stories May 30th Top Stories May 29th Top Stories May 24th Top Stories May 23rd Top Stories May 21st Top Stories May 17th