#shadow docket

SCOTUS is a hyper-partisan GOP special interest group.

Paul Blumenthal at HuffPost:

Whatever meager shred of legitimacy the U.S. Supreme Court had went up in flames with its shadow docket decision on Tuesday allowing Alabama to move forward with a racially discriminatory congressional map with no time for election administrators to prepare. The brief, unsigned decision to allow Alabama to implement a never-before-used congressional map repeatedly found to be racially discriminatory by a district court panel and a previous Supreme Court ruling is so shoddy and partisan that it is hard to take the court’s conservative supermajority seriously anymore. In April, the Supreme Court ruled in Louisiana v. Callais that to challenge racial vote dilution under the Voting Rights Act, plaintiffs must prove intentional racial discrimination, rather than merely discriminatory effects. At the same time, it allowed legislators to immunize themselves by claiming partisanship as a pretext for eliminating majority-minority districts — an easy task in Southern states with high levels of racial polarization. Alabama Republicans seized on this not to further bury the Voting Rights Act, but to defang the Reconstruction Amendments that gave the law its constitutional life. The resulting decision is as monumental as it is brief, and it reveals a court untethered from a semblance of duty to explain itself. The case, Allen v. Milligan, originated in 2021, when Alabama drew congressional district lines with just one Black-opportunity district — as it has since the 1990s. In a lawsuit, Black Alabamians alleged that the Voting Rights Act required the state to draw an additional Black-opportunity district and that the redistricting process was tainted by intentional racial discrimination. And they won, before a district court panel in 2022 and the Supreme Court in 2023.

A curious thing happened next: Alabama refused to abide by the Supreme Court’s decision and draw district lines with a second Black-opportunity district. The same district court panel found this map to be the product of intentional racial discrimination because of both the manner in which the legislature drew the map, including discussing creating communities for those with European heritage and the placement of Black voters, and because Alabama refused to draw a second Black-opportunity district after being explicitly ordered to do so. This led the district court panel to impose its own map for the 2024 election. But then came Callais. While Callais claims not to undo the Voting Rights Act, it does just that by making it all but impossible to win a Voting Rights Act case regarding redistricting. In a state like Alabama, where Black voters are overwhelmingly Democrats and white voters are overwhelmingly Republicans, all Republicans need to do is claim they are diluting Black voters because they are Democrats. The result has been a mad dash reminiscent of the onset of Jim Crow by Southern states controlled by white Republicans to eliminate congressional and state legislative seats held by Black Democrats.

But the decision in Callais also stated that it said nothing about challenges of racial discrimination brought under the 14th Amendment, as the Black Alabamians had done and the district court panel had ruled had happened in Allen v. Milligan. It also explicitly stated that Callais did not overturn the decision in Allen. “We have not overruled Allen,” Justice Samuel Alito wrote for the majority. Alabama Republicans responded by asking the Supreme Court to lift the district court panel’s injunction imposing the map with two Black-opportunity districts, and in the meantime passed a law to postpone its congressional primaries to impose the racially discriminatory map in case this happened. The Supreme Court approved Alabama’s request and ordered the panel to lift the injunction and reconsider the case in light of Callais — which the panel did, finding that the map was still racially discriminatory, even under Callais. Alabama then petitioned the Supreme Court to overrule the panel. And the court did. Despite the district court panel finding that Alabama had met the high bar proscribed by Callais and engaged in intentional racial discrimination, and basing its ruling on the 14th Amendment as well as the Voting Rights Act, the Supreme Court’s conservatives expanded on Callais.

It took Callais’ requirement that partisanship trump race from Voting Rights Act racial vote dilution cases and broadened it to 14th Amendment racial discrimination cases. And it raised the bar for proving intentional discrimination even further, requiring courts to presume “legislative good faith” whenever judging the legislature’s actions.

And so, Callais did overturn Allen, even though Alito and the five Republican-appointed justices who joined his opinion claimed it did not.

While the public has been focused on the occasional high-profile clash between President Donald Trump and the Supreme Court, the court's conservative supermajority has been quietly using the shadow docket to hand Trump something far more consequential — effective control of the federal government — and legal analysts say that work is now largely complete.

To understand why Donald Trump views the U.S. Constitution, international treaties, and federal judges not as sacred pillars of democracy, but as minor speedbumps, you have to stop looking at modern political science. You must look at his biography.

The strategy deployed from the Oval Office is the literal, hyper-scaled continuation of a ruthless boardroom playbook designed fifty years ago in the smoke-filled restaurants of Manhattan. Its architect was Roy Cohn—the notorious, brilliant, and deeply unprincipled attorney who served as chief counsel to Senator Joseph McCarthy during the 1950s Red Scare, defended New York’s most powerful Mafia bosses (like Fat Tony Salerno and John Gotti), and became young Donald Trump’s ultimate ideological programmer in 1973 [🔍].

From 1973 until today, Trump’s entire public and political existence has been a flawless execution of the Roy Cohn Playbook. It is a lifelong methodology of calculated chaos, aggressive lawlessness, and systemic gaslighting.

🧱 1. The Core Doctrines of the Cohn Playbook

Roy Cohn taught Trump that the legal system is not an instrument of justice; it is an arena of pure combat. The script consists of four immutable laws that Trump has deployed relentlessly across five decades:

Rule 1: Never Settle, Never Apologize 🚫: Admissions of error are viewed as fatal weaknesses. If you are caught red-handed, double down.

Rule 2: Counter-Attack Instantly ⚔️: If someone sues or investigates you, immediately sue them back, attack their character, and destroy their credibility in the press before the case ever reaches a courtroom.

Rule 3: Delay and Overload the System ⏳: Flood the courts with endless motions, appeals, and procedural technicalities. Overload the judicial machinery until the opponent runs out of money or the judge surrenders to exhaustion.

Rule 4: Shape Your Own Reality 🔮: Truth is not an objective fact; it is a transactional variable. If you repeat a fabrication with absolute confidence and aggressive frequency, it becomes reality for your followers.

📅 The Chronological Execution: 1970s to Today

To see the terrifying consistency of this DNA, we only need to map how Trump applied Cohn’s lessons across his entire public life, transforming a local real estate tactic into a tool for national transformation:

🏢 The 1970s: The Birth of Defiance (The DOJ Housing Case)

In 1973, the U.S. Department of Justice sued the Trump Management Corporation for systematically discriminating against Black apartment applicants. Most business owners would have quietly settled to protect their brand.

The Cohn Move: Trump hired Roy Cohn. Instead of settling, Cohn launched a massive $100 million counter-suit against the federal government, accusing the DOJ of "Gestapo tactics." While the counter-suit was swiftly dismissed, the aggressive delay allowed Trump to eventually sign a consent decree two years later with zero admission of guilt. Trump learned that bullying the federal government works.

🎰 The 1980s: Stiffing Subcontractors & Casino Chaos

Throughout his rise as a Manhattan real estate mogul and Atlantic City casino owner, Trump perfected the art of contractual attrition. He routinely hired local carpenters, plumbers, and architects to build projects like the Taj Mahal, waited for the work to be completed, and then refused to pay them, or offered 30 cents on the dollar.

The Cohn Move: When the ruined small businesses sued, Trump utilized Cohn’s exhaustion strategy. His legal teams dragged out the litigation for years. Independent contractors went bankrupt waiting for their day in court, forcing them to accept predatory settlements. Lawlessness became highly profitable.

📺 The 1990s & 2000s: The Weaponization of the Tabloids & Reality TV

When his Atlantic City empire collapsed into massive corporate bankruptcies in the early 1990s, Trump should have been financially ruined.

The Cohn Move: Applying the doctrine of shaping your own reality, Trump flooded the New York tabloids (and later, reality television with The Apprentice) with an aggressive narrative of supreme billionaire success. By weaponizing the press, he decoupled his public image from his actual financial failures, proving that controlled media narratives are more powerful than economic facts.

🏛️ The 2010s & 2020s: Scaling the Playbook to the Presidency

When Trump entered politics, the world watched in shock as he shattered every norm of American governance. In reality, he was simply applying the 1970s Manhattan real estate blueprint to the leader of the free world.

The Mueller Investigation & Impeachments: When investigated for foreign election interference or constitutional overreach, Trump didn't cooperate. He counter-attacked the investigators as "corrupt deep-state actors," delayed procedures via endless executive privilege claims, and repeated the phrase "Witch Hunt" until the public suffered from outrage fatigue.

The 2020 Election Denial: When he lost the election, he ran the ultimate Roy Cohn script: deny the reality, launch dozens of chaotic lawsuits to stress-test the system, and manufacture an alternative truth that culminated in the January 6th Capitol riot.

🚨 Today: Total Executive Immunity and Institutional Capture

The culmination of this lifelong methodology has reached its peak. The administration treats judicial constraints as optional suggestions [🔍].

The Modern Execution: When lower federal courts strike down unlawful executive decrees, the administration simply bypasses them via the Supreme Court's unreasoned Shadow Docket or instructs agencies like ICE to ignore richterliche injunctions completely [🔍, 🔍]. By implementing Schedule F to purge independent experts from federal watchdog agencies, the executive has scaled Cohn's tactic of destroying the referee to its absolute, terrifying conclusion [🔍].

🏁 The Final Verdict

Donald Trump is not a traditional politician who can be contained by fact-checkers, legal precedents, or constitutional definitions of truth. His entire 50-year biography is a continuous, highly successful triumph over the written law.

He does not respect the rules of democracy because Roy Cohn taught him that the rules are the greatest vulnerability of those who try to enforce them. The structural chaos, the endless stream of fabrications, and the systemic defiance of the courts on the nightly news are not signs of a system malfunction; it is the algorithm of a corporate hostile takeover operating exactly as designed by an old Mafia lawyer half a century ago.

👁️ A Crucial Lesson in Mentorship:"History reminds us that learning from the absolute best in a field does not mean they ever intended to teach you how to do good—sometimes, the most brilliant teachers are simply masters of the dark, training their disciples not to build a better world, but to dismantle it with flawless efficiency." 🎭♟️

I just learned that this shadow docket crap started with a 2016 ruling by the US Supreme Court that "temporarily" blocked President Obama's Clean Power Plan as the underlying legal issues were litigated. The New York Times story clearly demonstrates the bias of chief justice roberts and justice alito against climate-related policies, and the timidity of the four justices who were considered the "liberal bloc."

Here's a summary of this New York Times story from Esquire:

Over the weekend, The New York Times published a trove of personal memos from the members of the Supreme Court outlining the court’s promiscuous use of the so-called shadow docket. It has become the carefully constructed conservative majority’s favorite work-around to kill policies it doesn’t like and support causes that it and its corporate patrons do.

The report is an astonishing leak of private communications between the justices. It bespeaks a court at war with itself, completely out of the control of Chief Justice John Roberts. The best evidence of the latter contention is the fact that Roberts emerges from these memos as a complete hack. The Times traces the invigorated shadow docket back to when Roberts used it to block an environmental program from President Barack Obama.

For two centuries, the court had generally handled major cases at a stately pace that encouraged care and deliberation, relying on written briefs, oral arguments and in-person discussions. The justices composed detailed opinions that explained their thinking to the public and rendered judgment only after other courts had weighed in.

But this time, the justices were sprinting to block a major presidential initiative. By a 5-to-4 vote along partisan lines, the order halted President Barack Obama’s Clean Power Plan, his signature environmental policy. They acted before any other court had addressed the plan’s lawfulness. The decision consisted of only legal boilerplate, without a word of reasoning. At the time, the ruling seemed like a curious one-off. But that single paragraph turned out to be a sharp and lasting break.

That night marks the birth, many legal experts believe, of the court’s modern “shadow docket,” the secretive track that the Supreme Court has since used to make many major decisions, including granting President Trump more than 20 key victories on issues from immigration to agency power.

This is where Roberts comes in.

In public, Chief Justice John G. Roberts Jr. has cultivated a reputation for care and caution. The papers reveal a different side of him. At a critical moment for the country and the court, the papers show, he acted as a bulldozer in pushing to stop Mr. Obama’s plan to address the global climate crisis. When colleagues warned the chief justice that he was proposing an unprecedented move, he was dismissive. “I recognize that the posture of this stay request is not typical,” he wrote. But he argued that the Obama plan, which aimed to regulate coal-fired plants, was “the most expensive regulation ever imposed on the power sector,” and too big, costly and consequential for the court not to act immediately.