Transcription
It is Monday, September 8th, and before noon today, the Supreme Court did not just one, but two completely outlandish things on the shadow docket. Um, they basically overruled a century-old precedent. And then they said to the Trump administration, go ahead and do some racial profiling in immigration enforcement. And they did all of this on the shadow docket. I'm going to explain both of these rulings in a little bit more detail.
So first, what is the shadow docket? The shadow docket refers to the set of orders and opinions that the Supreme Court issues without full briefing, without oral argument. So we got these rulings today, and we didn't even know that they were coming because the Supreme Court can just announce shadow docket rulings whenever they would like, without any advanced notice. Also, because they are issued on this emergency shadow docket, the Supreme Court sometimes elects not to provide any reasons at all for why it has issued the decision that it did. And that was true in both of the orders that we got today.
So I will start with the court overruling the nearly century-old case in Humphrey's Executive. So Humphrey's Executive is kind of a key foundation, or the key foundation, of what's called the administrative state. Basically, all of the agencies that make up the federal government, like the Federal Trade Commission or the National Labor Relations Board, or you name it. Humphrey's Executive is a decision from the 1930s that had upheld a congressional statute that said the president didn't have the authority to fire at will the heads of multi-member commissions, specifically there, the commissioners on the Federal Trade Commission.
Now, once he got into office, Donald Trump, of course, started trying to fire everybody. And the Supreme Court had already let him fire the heads of some multi-member commissions, like the National Labor Relations Board or the Consumer Product Safety Commission. And we also know he is hot to trot on trying to fire a governor of the Federal Reserve Board. You know, Humphrey's Executive. That is the decision that says it is okay. It is constitutional for Congress to limit the president's authority to remove people at will from these important independent multi-member commissions.
So even though the Supreme Court had allowed Trump to fire the heads of some multi-member commissions, it has never overruled its decision in Humphrey's Executive, which was about the Federal Trade Commission. So, Donald Trump, of course, has tried to fire some of the members of the Federal Trade Commission. Lower courts had blocked him from doing so because they said, one, the Constitution is still a thing, and so is the Supreme Court's precedent in Humphrey's Executive. Well, this morning, Chief Justice Roberts issued what is called an administrative stay, putting on hold the lower court decision that had blocked the president from firing the Federal Trade Commissioner.
Now, technically, an administrative stay is just a temporary order that allows the court some more time before they consider whether to grant a stay at all. But here's the thing, there's no reason to grant the administrative stay unless you are going to grant the stay. Here, because if you looked at this case and if you looked at the president's actions and said, "Hey, wait a second. Our precedent in Humphrey's Executive, that's still a thing," then there would be no basis for the Supreme Court to grant the president emergency relief, extraordinary relief, allowing him to put on hold this lower court decision that had stopped him from firing the head of the Federal Trade Commission.
So this is a worrying sign that the Supreme Court is about to basically formally overrule Humphrey's Executive, a decision that, again, has been a key foundation for the modern administrative state. Now, even if the Supreme Court overrules Humphrey's Executive, they have suggested that maybe, just maybe, they would still allow Congress to prevent the president from firing at will the governors of the Federal Reserve Board. So, even if the court overrules Humphrey's Executive, maybe they would try to make up some distinction with the Federal Reserve Board, which they've already kind of gestured at. But the point is, overruling Humphrey's Executive would really open the door to considering whether the president can just fire willy-nilly the governors of the Federal Reserve Board as well. And somehow that's not even the most ridiculous thing the Supreme Court did today or before noon.
So in another case, Gnome versus Vasquez Purdomo, the Supreme Court, without explanation, issued a stay of a lower court decision that had blocked the Trump administration from doing certain pretty yucky stuff as part of its enforcement of immigration law. That is, as part of its immigration raids in Los Angeles. So, a federal trial court had concluded that the Trump administration was detaining people in Los Angeles as part of its immigration raids solely on the basis of their race or ethnicity, solely because they spoke Spanish or spoke English with some accent, or solely because they worked at certain locations like a Home Depot, where Steven Miller apparently directed the federal government to go conduct immigration raids. Um, so the federal trial court said, you can't do that. That is, you can only stop and detain people when you actually have some real evidence to suggest they are here in violation of immigration laws. And the mere fact that they are brown and might speak Spanish, that isn't enough, because the Constitution forbids racial profiling, right? It limits the government's ability to just single you out on the basis of your race or ethnicity.
So today, without explanation, the Supreme Court said, you know what, actually, maybe racial profiling is a-ok. Okay. So they didn't actually explain why they were allowing the Trump administration to go ahead with immigration raids in which people were stopping individuals in Los Angeles on the basis of their race or based on the fact that they spoke Spanish. Um, and this decision is, of course, more than a little ironic, given that the Supreme Court recently overruled its decisions that allowed schools to consider race when they were trying to build diverse student bodies. So basically, the Supreme Court has said it's not okay to consider race when you are trying to make schools diverse, but it is okay to use race when you are an ICE officer who is hauling people off the streets and shoving them into detention and possibly trying to deport them as well. This is not what we would consider neutral principles of the law.
Okay, so the Supreme Court didn't explain why they allowed the Trump administration to go ahead with these immigration raids, but Brett Kavanaugh did deign to offer us his reasons. And his reasons basically boil down to one, what's the big deal? These stops are seriously nothing big. He literally described these as immigration officers just stopping people for very limited durations and promptly releasing them once they conclude that they are United States citizens or are lawfully present. This does not remotely describe the state of the United States of America in 2025. Um, there have even been reports of the Trump administration deporting citizens or detaining citizens for extended periods of time.
Justice Sotomayor wrote in her dissent for, you know, the three Democratic appointees, um, that Justice Kavanaugh, you know, had relegated the interests of United States citizens to a single sentence, just insisting the government would free these individuals as soon as they offered proof of their citizenship. But here's the thing. Not everyone walks around, right, the neighborhood with just their passport in their pocket. And also, there have been reports that ICE has been limiting people's ability to contact their family members or allow family members and lawyers to access the people in immigration detention so as to allow them to prove their citizenship.
The implications of this ruling are deeply troubling, um, and were spelled out by Justice Sotomayor in her dissent for her Democratic colleagues. You know, as she wrote, um, what the Supreme Court has effectively allowed is the government to seize anyone who looks Latino, speaks Spanish, and appears to work at a low-wage job. Um, you know, she has described the Supreme Court as basically rescinding our constitutional guarantees for individuals on the basis of race and, you know, the fact that they might speak Spanish or speak English with an accent. Um, so this is just another, you know, iteration of the Supreme Court, you know, intervening in these matters to allow the Trump administration to continue to do things that lower federal courts found illegal. And the Supreme Court doesn't bother to explain why they are allowing the Trump administration to do things that very reasonable, very careful lower federal courts concluded violated the law.
It's also worth noting that under the government's criteria of, are you brown and do you speak Spanish or have an accent, almost half of Los Angeles could be detained, you know, under this theory. And that should drive home just how stunning and sweeping a set of powers the Trump administration is asserting, and that the Supreme Court is giving them.
Thanks so much for listening and watching to this quick explainer. Um, if you'd like to hear more from me and the other hosts of Strict Scrutiny, be sure to subscribe to our YouTube channel.