{"id":174095,"date":"2026-03-05T12:37:29","date_gmt":"2026-03-05T20:37:29","guid":{"rendered":"https:\/\/lukeford.net\/blog\/?p=174095"},"modified":"2026-03-05T12:40:33","modified_gmt":"2026-03-05T20:40:33","slug":"nyt-an-assertive-supreme-court-turns-to-curbing-state-courts","status":"publish","type":"post","link":"https:\/\/lukeford.net\/blog\/?p=174095","title":{"rendered":"NYT: An Assertive Supreme Court Turns to Curbing State Courts"},"content":{"rendered":"

Ann E. Marimow reports for the New York Times<\/a>: <\/p>\n

\n

Since President Trump returned to the White House, the Supreme Court\u2019s conservative majority has shown a willingness to short-circuit lower-court proceedings with a slew of emergency rulings in federal cases. But this was a rare instance in which the justices leapfrogged the state courts, too \u2014 a sign, legal experts said, that despite intense scrutiny of how the Supreme Court has been using its emergency docket, the conservative justices appear to be expanding its use rather than constraining it.<\/p>\n

Unlike the court\u2019s traditional \u201cmerits\u201d cases, which arrive after months or years of lower-court consideration, emergency requests are fast-tracked with limited briefing and almost always without oral argument. The emergency docket has exploded in recent years, particularly in the second Trump administration, with the filings accounting for a significant part of the justices\u2019 workload. While the quick-turn orders are technically place holders, they can effectively settle significant issues while litigation plays out in the lower courts.<\/p>\n

Stephen I. Vladeck, a Georgetown University law professor and the author of a book called \u201cThe Shadow Docket,\u201d said the emergency orders this week made the court \u201clook like what so many regularly accuse it of being: a font of partisan political power.\u201d The justices, he added, had gotten into a \u201cbad habit\u201d of granting relief before litigants had gone through the process in the lower courts.<\/p><\/blockquote>\n

Adam Liptak writes for the New York Times<\/a>: <\/p>\n

Then, last August, in an unrelated case on government grants, Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, took another swipe at Judge Murphy, saying he and other judges had engaged in judicial defiance that had required the Supreme Court \u201cto intercede in a case \u2018squarely controlled\u2019 by one of its precedents.\u201d<\/p>\n

That is an awfully categorical statement to make about an order that contained no reasoning.<\/p><\/blockquote>\n

What you are seeing in those pieces is less a legal argument than a status narrative about who gets to define legitimacy.<\/p>\n

The Supreme Court is described as \u201cpartisan\u201d when it produces outcomes that clash with the professional class that dominates elite journalism and much of the legal academy. That language does a few things at once.<\/p>\n

First, it reframes disagreement over constitutional interpretation as institutional misconduct. Instead of saying \u201cthe Court adopted a conservative reading of executive power or election law,\u201d the framing becomes \u201cthe Court is acting politically.\u201d The effect is to move the dispute from law into legitimacy.<\/p>\n

Second, it elevates district judges like Brian Murphy into heroic figures resisting partisan power. Notice the narrative structure in the article. Murphy is portrayed as courageous and principled. The administration is portrayed as aggressive. The Supreme Court is portrayed as cryptic and power-grabbing. That framing recruits the reader into a particular coalition.<\/p>\n

Third, the criticism of the \u201cshadow docket\u201d performs the same move. Emergency orders have always existed because courts often need to act quickly. What is new is the political valence. When the Court uses emergency orders in ways that block policies favored by the professional class, the procedure becomes suspicious and illegitimate. When the same mechanism blocks policies they oppose, it rarely produces the same alarm.<\/p>\n

The deeper issue is that many legal elites still operate with the myth of neutral judging. In that myth the Court sits above politics and simply applies law. When the Court behaves like a normal political institution that interprets ambiguous texts through ideological lenses, the myth breaks.<\/p>\n

Historically the Court has always been tied to political coalitions.<\/p>\n

Dred Scott v. Sandford aligned with the slaveholding coalition.
\nLochner v. New York aligned with a laissez-faire constitutional vision.
\nBrown v. Board of Education aligned with the emerging civil rights coalition.
\nRoe v. Wade aligned with the liberalizing social coalition of the 1970s.<\/p>\n

Every era describes the Court as principled when it agrees with its coalition and partisan when it does not.<\/p>\n

The Murphy episode also reveals another structural tension. District judges increasingly behave like national political actors. They issue sweeping injunctions that halt presidential policies across the entire country. That effectively turns a single trial judge into a temporary veto player over national policy. When the Supreme Court intervenes quickly to stop that, critics describe it as aggressive or partisan.<\/p>\n

So you get a strange inversion. A district judge who blocks national immigration policy becomes a defender of the Constitution. The Supreme Court stopping that judge becomes the institution abusing power.<\/p>\n

The word \u201cpartisan\u201d in this context is doing coalition work. It signals that the Court\u2019s current majority sits outside the cultural and professional networks that dominate elite law schools, legal journalism, and much of the federal bureaucracy. Calling it partisan is a way of challenging its authority without openly arguing that the Constitution should mean something different.<\/p>\n

When elites say the Supreme Court is \u201cpartisan,\u201d they are not making a neutral institutional observation. They are doing coalition politics.<\/p>\n

The professional class that dominates elite media, universities, and many legal institutions treats neutrality as the central virtue of judging. In their status system, a judge\u2019s prestige comes from appearing above faction. The ideal image is the technocratic arbiter applying neutral principles. So calling a justice \u201cpartisan\u201d is a way of stripping that status. It places the justice outside the guild\u2019s moral hierarchy.<\/p>\n

But there is an asymmetry in how the term is used.<\/p>\n

First, elites tend to describe decisions they dislike as \u201cpartisan\u201d and decisions they like as \u201cprincipled.\u201d When the Court produces an outcome aligned with their policy preferences, the language shifts to \u201cdefending the rule of law,\u201d \u201cprotecting institutions,\u201d or \u201cupholding precedent.\u201d When the outcome cuts the other way, suddenly the justices are acting like political operatives.<\/p>\n

Second, the charge of partisanship is often a way of delegitimizing outcomes without directly arguing the law. If the public accepts that the Court is just another political actor, then the authority of its rulings weakens. That creates space for proposals like court expansion, jurisdiction stripping, or ignoring decisions. The rhetoric prepares the ground for institutional conflict.<\/p>\n

Third, the critique ignores a basic reality about constitutional law. Many of the hardest cases involve value conflicts that cannot be resolved by pure logic. Questions about abortion, administrative power, religion, gun rights, or federalism inevitably reflect competing political philosophies. Judges bring those philosophies with them. Pretending otherwise is part of the legal guild\u2019s self-image.<\/p>\n

From an alliance perspective, the word \u201cpartisan\u201d is a moral weapon. It signals to allies that the rival coalition is violating the shared rules of the game. It also reassures one\u2019s own side that their position represents the neutral center rather than a faction.<\/p>\n

The irony is that the same elite ecosystem often treats partisanship as normal everywhere else. Congress is partisan. Presidents are partisan. Voters are partisan. Only judges are supposed to float above the conflict. That expectation reflects the professional identity of the legal class more than the structure of democratic politics.<\/p>\n

In practice, the Supreme Court has always been entangled with politics. <\/p>\n

So when elites say the worst thing a judge can be is partisan, what they really mean is this. Judges should not openly align with the coalition they oppose. Judges who align with their own coalition are described as principled guardians of the Constitution.<\/p>\n","protected":false},"excerpt":{"rendered":"

Ann E. Marimow reports for the New York Times: Since President Trump returned to the White House, the Supreme Court\u2019s conservative majority has shown a willingness to short-circuit lower-court proceedings with a slew of emergency rulings in federal cases. But … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[551],"tags":[],"class_list":["post-174095","post","type-post","status-publish","format-standard","hentry","category-law"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/lukeford.net\/blog\/index.php?rest_route=\/wp\/v2\/posts\/174095","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lukeford.net\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lukeford.net\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lukeford.net\/blog\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lukeford.net\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=174095"}],"version-history":[{"count":5,"href":"https:\/\/lukeford.net\/blog\/index.php?rest_route=\/wp\/v2\/posts\/174095\/revisions"}],"predecessor-version":[{"id":174100,"href":"https:\/\/lukeford.net\/blog\/index.php?rest_route=\/wp\/v2\/posts\/174095\/revisions\/174100"}],"wp:attachment":[{"href":"https:\/\/lukeford.net\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=174095"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lukeford.net\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=174095"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lukeford.net\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=174095"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}