by Barry Goldman
Suppose we have two 
groups of citizens. Let’s call them the Shirts and the Skins. The Shirts believe homosexuality is an abomination that stinketh in the nostrils of the Lord, and abortion is baby murder. The Skins believe homosexuality is perfectly normal and natural, and abortion is a woman’s right. How can we build a society where those groups can get along without killing each other?
One approach might be to encourage the two sides to leave each other alone. You think homosexual sex is wrong? Fine, don’t engage in it. You think abortion is wrong? Fine, don’t have one. But don’t tell me what to do. This produces some familiar formulations. Everyone is to have the greatest amount of freedom compatible with similar freedom for everyone else. Your right to swing your arm ends where my nose begins. Live and let live.
But that answer doesn’t work for Shirts and Skins. If I really believe abortion is baby murder, it isn’t enough that I don’t do it. I also have a moral duty to prevent you from doing it. I can take a live and let live attitude about what color you paint your house. It’s none of my business. But I can’t let you murder babies. And I can’t compromise. I might accept some strategic compromise on a temporary basis, but I can never permanently accept anything short of complete abolition.
The same is true for people who really believe homosexual behavior is terribly wrong. It’s like slavery. Or cannibalism. Or human sacrifice. I can’t allow you to throw any virgins into the volcano. None. You also can’t engage in ritual cannibalism. Even on special holidays. Compromise is not an option.
The negotiation literature calls these “sacred issues.” It is insulting even to suggest compromise on a sacred issue. Sacred issues are incommensurable. If you think I might be persuaded by, say, an offer of money to compromise on a sacred issue, you simply don’t understand what a sacred issue is.
So now what?
The answer is politics. The Skins go out and try to convince people to vote for politicians who support Skin policies. The Shirts try to convince people to vote for politicians who support Shirt policies. Then we have an election. The side that gets the most votes wins, and it gets to write the laws. We all live under those laws for a while, and then we have another election.
Naturally, both sides try to cook the books. They gerrymander the voting districts to give their side an advantage. They try to suppress the vote of groups they think will support the other side. Of course they do. And not just because each side wants to maximize its money, power and influence, but because they take their sacred issues seriously.
So far, so good. If we can’t agree on substance, at least we can agree on procedure. But we would want some constraints on the law-making power even of our freely, fairly and duly-elected representatives. We would want something like a constitution and a bill of rights. We may be willing to give our law makers plenty of power, but we still need to prevent them from changing the law to the point where it permanently entrenches one side or the other. They can’t install a hereditary monarchy. They can make no law abridging freedom of speech or of the press or of the right of the people peaceably to assemble. They can’t establish a religion or interfere with the free exercise thereof. They can’t deprive people of life, liberty or property without due process of law.
When there are disputes about the application of the laws, we would want them resolved by an independent judiciary, after full briefing and argument, in reasoned, written, publicly available opinions. No Star Chambers. No secret tribunals.
Of course, there are legitimate reasons to keep some information confidential, and there are legitimate emergencies when time is of the essence and ordinary procedures need to be abbreviated. But the default condition in judicial decision making should always be transparency and reasoned discourse.
That is why the explosive growth of the Supreme Court’s shadow docket is so alarming. According to Stephen Vladeck, Georgetown law professor and author of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, the number of full court decisions on emergency applications that are not signed, not explained, not argued, and not fully briefed:
went from one every other year during Bush and Obama to almost one a month during the first Trump administration. The Biden administration averaged five per year. And now we’re at basically one a week.
Vladeck quotes Justice Kagan:
this Court’s shadow-docket decision-making every day becomes more unreasoned, inconsistent, and impossible to defend.
He quotes Adam Serwer’s 2021 Atlantic article, Five Justices Did This Because They Could:
The shadow docket has begun to look less like a place for emergency cases than one where Republican-appointed justices can implement their preferred policies without having to go through the tedious formalities of following legal procedure, developing arguments consistent with precedent, or withstanding public scrutiny.
Vladeck’s book came out in 2023. Since the beginning of the second Trump term, the situation has gotten far worse. The shadow docket’s proliferation of “emergency” decisions has dramatically increased not only in number but in scope. The exception has swallowed the rule. Major decisions on central legal questions are being made in unsigned, unexplained orders. This undermines an essential component of the social contract. The public has a right to expect the Supreme Court to show its work and sign its opinions. We can’t expect politicians to be anything other than politicians. But we have a right to expect judges to act like judges and not just politicians in robes.
Justice Kagan, along with Justices Sotomayor and Jackson, has been a fierce critic of the shadow docket. Her dissents in shadow docket cases make for inspiring reading. But a troubling new wrinkle has appeared. Justice Kagan concurred with the majority in Department of Homeland Security v. D.V.D. Here is her concurrence (citations omitted):
I voted to deny the Government’s previous stay application in this case, and I continue to believe that this Court should not have stayed the District Court’s April 18th order enjoining the Government from deporting non-citizens to third countries without notice or a meaningful opportunity to be heard. But a majority of this Court saw things differently, and I do not see how a district court can compel compliance with an order that this Court has stayed. Because continued enforcement of the District Court’s May 21, 2025 order would do just that, I vote to grant the Government’s motion for clarification.
That left only Justices Sotomayor and Jackson in dissent. Here are the first few sentences of their dissent:
The United States may not deport non-citizens to a country where they are likely to be tortured or killed. International and domestic law guarantee that basic human right. In this case, the Government seeks to nullify it by deporting non-citizens to potentially dangerous countries without notice or the opportunity to assert a fear of torture.
And here is their last sentence:
Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial.
The divergence between Justice Kagan and the other two progressive justices is important here. Vladeck wrote a Substack about it. Kagan’s is a lawyerly approach. This is not surprising. Before she was appointed to the Supreme Court, Kagan was the dean of Harvard Law School and the solicitor general of the United States. She is a lawyer to the bone. For her, the Law is sacred. She is also perhaps the sharpest knife in the drawer.
Justices Sotomayor and Jackson’s approach is not so legalistic. They refuse to lose sight of the real-world consequences of their actions. Real people will be tortured and killed as a result of this decision. It is a mistake to bring a knife – even a very sharp one – to a gunfight.
One hundred years ago, H.L. Mencken described the view out the window of a train traveling east from Pittsburgh. The essay is called “The Libido for the Ugly” It is appropriate to borrow Mencken’s phrase to describe the Trump administration’s policies. Trump and his appointees, Stephen Miller in particular, have a libido for the cruel. Adam Serwer wrote a justly famous essay on the subject, The Cruelty is the Point. In a fight with an adversary like that, the dainty rules of legal formalism are grotesquely out of place.
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