The Supreme Court grants cert in a death penalty case, agreeing to decide the question of whether the defendant was denied effective assistance of counsel. At the same time, the Supreme Court denies a stay of execution, with the execution date set for the next day. On the surface, it makes no sense. After all, regardless of what the Supreme Court decides, the defendant will be dead. No matter how much authority one places in the Court’s order, the defendant will still be dead, thus rendering the Court’s decision a fait accompli or a nullity. Either way, it makes no sense.

So why, oh why, did the Court deny the stay pending its hearing and determination of the case? The Court offers no explanation. No rationale. It just says “stay denied.” “What,” you reasonably ask, “are they doing?”

This is, essentially, what the Supremes just did with regard to the firing of the staff of the Department of Education.

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.

Having spent a great deal of time discussing the failings of the DoEd dealings with Title IX, its primary mission, and the harm it’s done to the law and the lives of a great many innocent young male students who were denied due process, I’m hardly an advocate for the perpetuation of this rogue department. But at the same time, it was created by Congress, for better or worse, and the Trump administration put a professional wrestling maven in charge for the express purpose of ending its existence without bothering to go to Congress for its authorization.

Mr. Trump had signed an executive order on March 20 instructing Ms. McMahon to start shutting down the federal agency, which manages federal loans for college, monitors student achievement and supports programs for students with disabilities. Trump administration officials cited low test scores by students as the reason to dismantle the department.

“We’re going to shut it down, and shut it down as quickly as possible,” Mr. Trump said during the ceremony where he signed the executive order.

That was Linda McMahon’s job, and she did as she was told. Naturally, there was a suit, and McMahon was enjoined from terminating the department’s staff based upon the lack of congressional authority.

On May 22, Judge Myong J. Joun of the U.S. District Court for the District of Massachusetts ordered the Trump administration to reinstate the fired employees while the lawsuit was pending. Judge Joun, who was nominated to the bench by President Joseph R. Biden Jr., said he agreed that only Congress could eliminate the department and that the administration’s actions amounted to an illegal shutdown of the agency.

On June 4, a panel of judges in the U.S. Court of Appeals for the First Circuit upheld Judge Joun’s ruling. Two days later, the Trump administration filed an emergency application with the Supreme Court, asking it to intervene and lift the trial judge’s order. In the filing, Solicitor General D. John Sauer argued that Judge Joun had “thwarted the executive branch’s authority to manage the Department of Education.”

In response, lawyers for the challengers argued that the agency’s leaders had “set out to destroy the agency by executive fiat” and without the support of Congress.

That order, granted by Judge Joun and upheld by the First Circuit, was the one stayed by the Supreme Court, with the three judges you would expect dissenting.

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.

It seems an unremarkable point, and yet it appeared in the dissent. But surely the six justice majority had a damn fine reason for staying an order that would prohibit the execution of the Department of Education pending the decision of whether the president. by Executive Order, can shut down a cabinet department created by Congress, right? Right?

Whether the Supreme Court was right to grant the stay of Judge Joun’s order or not isn’t the point. That the Court did so without any justification, explanation or rationale is the point. No opinion need be provided to explain a decision on the shadow docket, and when it comes to Trump’s exercise of ultra vires power, there is little explanation.

Since April 4, #SCOTUS has issued 15 rulings on 17 emergency applications filed by Trump (three birthright citizenship apps were consolidated). It has granted relief to Trump … in all 15 rulings. It has written majority opinions in only 3. Today’s order is the 7th with no explanation *at all.*

When Will Baude coined the phrase “shadow docket,” it wasn’t quite so shadowy. Since Trump, it’s gone damn near dark, bald rulings without even bothering to explain. Perhaps the rulings from the Supreme Court’s shadow docket are sound. Perhaps they’re appeasement to avoid the inevitable constitutional crisis when the administration is forced to openly flout SCOTUS. But either way, has this gone too far to make such critically important decisions as letting the execution take place before deciding whether the defendant should die?

*Tuesday Talk rules apply.