Thing to Read This Week (8/11)

One big one from Jack Goldsmith

I am away from my desk again this week, but maybe you don’t need a long list if the piece is good enough?

Interim Orders, the Presidency, and Judicial Supremacy, by Jack Goldsmith.

This essay analyzes the eighteen interim orders concerning Trump administration initiatives that the Supreme Court issued between January 20, 2025 and August 6, 2025.

The dominant theme in the orders is the protection and enhancement the Supreme Court’s ultimate authority to interpret federal law. Horizontally, where judicial supremacy is vulnerable, the orders negotiated the complex space between vindicating the Court’s view of federal law and keeping a minatory president in compliance with that law and the Court’s rulings. Vertically, where the Court’s supremacy is robust but not always efficacious, the orders tightened its early control over lower courts’ responses to executive action, enabling it to shape the judiciary’s collective stance. These twin efforts came to a head in the Court’s invalidation of universal injunctions in the interim order opinion in Trump v. CASA. The ruling eliminated a lower-court tool to block presidential programs, extracted a historic executive branch pledge of fealty to Supreme Court “judgments and opinions,” and clarified the Court’s conception of its supremacy in other ways.

Part I of the essay introduces the orders and the dispute over universal injunctions. Part II analyzes the presidency-focused orders. Though the executive branch prevailed in the vast majority, the evidence does not support the view that, as some have claimed, the Court is appeasing a law-breaking presidency. Part III focuses on how the Court enhanced its vertical control over the lower federal courts through important innovations in its interim orders practice. Part IV examines CASA. It questions the Court’s method for determining the validity of equitable remedies like universal injunctions, assesses the decision’s impact on the Court’s interim orders practice going forward, and analyzes how CASA surfaced and tentatively resolved perhaps the hardest question in constitutional law—the nature of the president’s duty to abide by Supreme Court decisions. Part IV also notes how the Court in CASA staked out a broad law declaration function for its own “judgment and opinions” even as it chastised Justice Jackson’s dissent for defending such a vision in the lower courts.

Many essential thoughts on Trump v. CASA specifically and the shadow docket generally. Also, for those of you trying to keep up with the terminology, Jack makes the persuasive case that rather than the “shadow docket” or the “emergency docket,” we should call this class of cases “interim orders.” See this poll from David Lat to weigh in:

Emergency Docket, Shadow Docket—What The Heck Do We Call This Thing?