Constitutional law collapse: The rise of shadow docket dictator law

The one-sentence shadow docket 

death knell for the constitutional rule of law

Warnings have been given

For years, multiple urgent warnings have come from here about the subversion, corruption and authoritarian radicalization of the USSC. The worst has now come to pass. Our highest court is now solidly anti-democracy, pro-kleptocracy, autocratic, plutocratic and Christian nationalist theocratic.

The shadow docket 

For the most part, the USSC has ceased functioning as a pro-democracy institution. Many major court decisions are now made with essentially no explanation at all. The process of federal "law" is now done by djt asking the USSC for emergency relief and the six MAGA authoritarians granting it. Once an application for emergency relief is granted, the USSC can issue a 1-2 page or even a single paragraph "decision" that allows djt to do what he wants. That happens even if what djt wants to do or has done is clearly unconstitutional or illegal. The rule of the dictator-kleptocrat has replaced the constitutional rule of law at the discretion of djt. 

Those short, unexplained decisions are issued on what is called the shadow docket. That refers to the USSC's practice of issuing emergency orders and summary decisions outside its regular case docket. Usually the process plays out with no oral argument, very limited briefing, and no detailed written explanation of the court's decision. That is basically the opposite of the traditional "merits docket." For merit cases, there usually are months of briefing, formal oral arguments, followed by a lengthy signed court opinion. By contrast, shadow docket cases are decided quickly, often within a week to ten days of the emergency relief request. 

It works by one party in a dispute submitting an emergency request for immediate relief. The other party is given just a one or few days to respond by a deadline the court imposes for reasons known only to the judges. The court then decides to grant or deny the relief the requestor asked for. Lately, djt has been getting emergency relief grants on major matters of critically high importance for democracy and the old-fashioned, now nearly extinct, rule of law. 

In theory, shadow docket decisions can be reversed later when the full merits case comes to the USSC for a full decision and explanation. But the grant of relief rigs the underlying case.

Court analyst and legal scholar Steve Vladeck (Georgetown U. law professor) points out that the MAGA judges have recently started to turn shadow docket decisions into documents with precedent power. In the past, court precedents that guided lower court reasoning and decisions were based only on written merits cases. Now shadow docket cases are taking on the merits case precedent character. This signals that the USSC is reducing the role of merits cases to allow a unitary executive president, more or less a dictator, to do whatever he wants. 

Vladeck points out the case, Trump v. Boyle, and single sentence (highlighted above) where precedent power in the shadow docket arose first: 

Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases. 

 

Right there, in that single sentence, the authoritarian MAGA judges inflicted a grievous wound on the rule of law. The old law is dying and dictator law is rising to replace it.

What happens to the underlying merits cases that gives rise to a shadow docket decision? In practice, the underlying case is weakened for the losing party when the court grants emergency relief. There is a one-way ratchet effect. The USSC grants emergency relief and that creates what Vladeck calls precedential vibes. Research shows that shadow docket cases receive substantially more precedential treatment when they grant relief, which changes the status quo of the lawsuit. This creates a ratchet effect where successful emergency applications become building blocks for future victories. By contrast denial of emergency relief has minimal precedential impact. In other words, our authoritarian USSC is using unexplained emergency relief grants to bootstrap djt to dictator-level power. 

We are soooo screwed.

Huh? What's a shadow docket??

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FWIW, if anything, here is part of Kagan's dissent in Trump v. Boyle:

Once again, this Court uses its emergency docket to destroy the independence of an independent agency, as established by Congress. Two months ago, in Trump v. Wilcox, the majority issued a stay allowing the President to discharge, without any cause, Democratic members of the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB). See 605 U. S. ___, ___ (2025) (slip op., at 1). Today, the same majority’s stay permits the President to fire, again without cause, the Democratic members of the Consumer Product Safety Commission (CPSC). Congress provided that the CPSC, like the NLRB and MSPB, would operate as “a classic independent agency—a multi-member, bipartisan commission” whose members serve staggered terms and cannot be removed except for good reason. Id., at ___ (KAGAN, J., dissenting from grant of application for stay) (slip op., at 2); see 15 U. S. C. §2053(a) (requiring “neglect of duty or malfeasance”). ....

MAGA's authoritarian-kleptocrat war on freedom of expression

A NYT opinion (not paywalled) discusses aggressive MAGA efforts to control all media sources and generally poison public discourse: 

The latest maneuver comes from the Federal Trade Commission. Last month, it announced that it would approve the merger of two of the biggest ad agencies in the world only if the parties agree to an unusual condition: The merged company cannot refuse to place ads on websites for political reasons.

The move was a sharp break from its traditional practice. The F.T.C. is usually focused on such concerns as consumer protection and monopoly power; now it’s trying to dictate where businesses advertise their products.

While the move would theoretically affect platforms of any political persuasion, there’s little doubt that it is a thinly veiled attempt to prop up X.

If advertisers adopt this approach, it could expand to mean more money for Mr. Trump’s own media platform, Truth Social, as well as his favorite conservative outlets, and less money for outlets that are adversarial to the administration.

The F.T.C. move is an attempt to tilt the media landscape in favor of the government in ways that are simply un-American. If we want a media that is willing to stand up to government, we need to fight for the right to boycott, not just for ourselves but also for advertisers.

This started with the FTC's June 2025 consent order for the Omnicom-Interpublic Group merger. The merger had an unprecedented condition requiring the merged entity to avoid refusing ad placements "based on political or ideological viewpoints." The $13.5 billion merger created the world's largest advertising agency. But the merger came with restrictions that legal experts describe as "blatantly inconsistent with the First Amendment right of advertisers not to associate their brands with content or viewpoints that they know consumers find objectionable."

The consent order specifically prohibited the merged company from "entering into or maintaining any agreement or practice that would steer advertising dollars away from publishers based on their political or ideological viewpoints." This was a dramatic expansion of FTC MAGA power into editorial and commercial speech decisions. Previously, those decisions were protected forms of free speech expression.

These blatantly authoritarian MAGA actions are a direct attack no both media independence and democratic discourse. By weaponizing federal agencies to protect favored outlets from market forces, MAGA elites create what amounts to a state-subsidized conservative media ecosystem that is impervious to organized backlash by citizens and companies. MAGA elites want to force companies to advertise with crackpot and poison sources like Musk's X and djt's cynically named Truth Social (actually, lies antisocial).

MAGA's authoritarian transformation of antitrust enforcement from protecting competition to protecting specific political viewpoints is a deadly anti-democracy precedent. It fundamentally alters the relationship between government, media, and commercial speech in American democracy with a power shift from the public interest to the dictator-kleptocrat djt. 

Warranted anger, resentment and moral outrage

The constant stream of outrageous hypocrisy, lies, slanders, crackpottery and pure bad faith oozing from MAGA elites and their morally rotted leader is getting very hard to take. One example, djt asked the Texas legislature to redraw its House voting districts. Normally that is done every 10 years. But djt is worried about the 2026 elections. So the legislature did what he asked. The result is that five Democrats will lose their House seats in 2025. djt is pressing Republican legislatures in Missouri, Indiana and some other states to do the same. This is an example of politicians choosing their voters for partisan advantage. It is anti-democratic but legal.[1] 

In response, California governor Gavin Newsom says he’ll follow suit and call a special election on redistricting if Texas approves its gerrymander. CA uses an independent commission to draw House voting districts to keep elections competitive, so a special election is needed for voters to approve the change.[2] The MAGA reaction to what CA is proposing is predictable bad faith MAGA propaganda. JD Vance unleashed this blast of insulting hypocrisy: “The gerrymander in California is outrageous. Of their 52 congressional districts, 9 of them are Republican. That means 17 percent of their delegation is Republican when Republicans regularly win 40 percent of the vote in that state. How can this possibly be allowed?”  

Vance cynically ignores the fact that the new TX gerrymander will probably give MAGA Republicans 80% of the TX House delegation despite about 43% of TX voters choosing to vote in the Democratic Party primary (55% Republican), a proxy for registered voter party affiliation.[3] The 38% TX gerrymander gap is bigger (worse) than the 23% CA gap. Vance should be howling a lot louder about TX than CA. Obviously that will never happen.

Standard MAGA tactic

Insulting, bad faith politics like that is routine from MAGA elites. But it isn't just hypocrisy, lies, bullshit, cynical demagoguery and insulting bad faith that the opposition to MAGA authoritarianism and kleptocracy gets hit with every day. But to save our democracy,  civil liberties and rule of law, some tell us we have to also respect and reach out to those poor MAGA voters and sympathizers. We have to treat them like adults who have suffered much injustice and disrespect. The problem is that people in opposition have suffered just as much injustice and disrespect. On top of that, the opposition also have to suffer what the elites running kleptocratic authoritarianism dish out every day.

People who oppose Trump and MAGA politics, policy and the moral rot of kleptocratic authoritarianism, have every plenty of good reasons to be deeply angry, resentful, fearful and disgusted. The MAGA rank and file, being deceived and manipulated, has excellent reasons for anger, fear and resentments. The opposition has better reasons.

From what I can tell, no one out there is saying aw geez, those poor minorities, democracy defenders, non-Christians, secularists, and rule of law advocates have been disrespected, abused, ripped off and betrayed. Well, they have been. They are entitled to be at least as pissed off and morally outraged and the MAGA rank and file. In my opinion, the opposition to MAGA has far better reasons for anger and outrage than the MAGA rank and file.

Q: Is it counterproductive or irrational for the opposition to feel at least as abused, disrespected and morally outraged as the MAGA rank and file? Who is more abusive, disrespectful and immoral here, MAGA elites and their bigoted, corrupt, authoritarian Project 2025 with its insulting bad faith and mendacious demagogic tactics or their opponents? 

Footnotes:

1. Cynically but not surprisingly, TX governor and extremist MAGA authoritarian Gregg Abbott lied about it: “We will maximize the ability of Texans to be able to vote for the candidate of their choice.”  What he intends but would never not say is that he wants maximize the ability of Texans to be able to vote for corrupt, authoritarian Republicans to put them in power. Abbott made redistricting part of the recently scheduled 30-day special legislative session after djt asked for redistricting.

2. FWIW, if anything, here are some relevant comments from a Feb. 2022 DP blog post: That is why I changed my mind about the gerrymander. CA alone has unilaterally conceded 10 safe Democratic House seats for the sake of voter enfranchisement. That alone could be enough to give the Republican Party control of the House in 2022 and 2024, which in turn could be enough to allow the Republican Party to mostly or completely kill American democracy, the rule of law and civil liberties. 

The predictions about 2022 and 2024 were both correct. 

A Nov. 2022 post raised the same issue: If Republicans retake the House, which is still unsettled, one can argue that it will be because two large Blue states, CA and NY, got rid of partisan gerrymandering. .... The House could fall to the fascist Republican Party, where those pro-democracy non-partisan seats in CA and NY were necessary for that to happen.

Yes, the gerrymander is anti-democratic. But not gerrymandering by blue states is also not democratic. Damned if you do, damned if you don't.

3. Fact-checked Pxy: Estimates based on primary participation and exit polling from recent major elections suggest that, among voters who have participated in recent primaries or general elections, about 55–56% tend to support Republicans, around 42–44% support Democrats.

Source (pre-2024 election data)

Regarding that far better than great trade agreement with the EU

Lying vs bullshitting

MSN reported about the trade trade agreement wit the EU that djt announced while he is in Scotland cheating on his golf game. I asked Pxy if the MSN reporting was accurate and if so, whether djt's description of the deal was lying or bullshitting. Pxy said that (1) the MSN reporting is accurate, and (2) Trump's behavior fits the pattern of bullshitting rather than lying. 

Pxy says: Liars know the truth (and this) and actively try to conceal it. They maintain a relationship with truth even as they oppose it. Bullshitters are indifferent to truth and falsity altogether. They don't care whether their statements are true or false, only whether they serve their purposes. Trump's pattern shows classic bullshitting characteristics. He has made contradictory claims about the same deal within hours (1, 6), and his administration has consistently failed to provide coherent details when pressed. This suggests indifference to factual accuracy rather than deliberate deception (3, 5).

The illusory EU trade agreement

MSN reports: 

The preliminary agreement, announced at the end of a face-to-face meeting of Ursula von der Leyen and Donald Trump in Scotland, has prompted a massive wave of criticism over its heavily lopsided nature in favor of American interests.

Then the story took a new twist when the White House published a fact sheet about the agreement with multiple claims that mismatched or downright contradicted the version of events presented by the Commission just hours earlier.

On Tuesday, Brussels replied with its own statement, sowing further confusion.

Here's a summary of djt's bullshit.

Pharmaceuticals: djt claims pharmaceuticals will be subject to the 15% tariff immediately, while the European Commission states pharmaceuticals will remain at 0% tariffs until separate US investigations are completed. Based on nothing at all, he also suggested that pharmaceuticals might face higher tariffs later.

Energy Purchases: djt alleged there is a $750 billion energy sales commitment in the binding trade agreement. However, the European Commission clarified it cannot legally guarantee private sector purchases and described the figure as merely an "indication based on contacts with industry". Analysts call these energy purchase targets "unrealistic" and "nearly unfeasible" because the US cannot currently produce that much exportable carbon energy. And, the Commission said it does not even have the authority to negotiate such a deal because that is a matter of individual national decisions.

Investment Pledges: djt falsely touted $600 billion in guaranteed EU investments in the fake agreement. The Commission emphasizes these are private sector intentions beyond government control. The Commission acknowledges this figure "might shrink once the impact of the EU-US trade deal begins to take effect".

US Military Equipment: The bullshitter falsely claimed the EU "agreed to purchase significant amounts of US military equipment." The Commission "resolutely denied making any pledge" regarding weapons purchases, calling it strictly a national competence matter.

Steel and Aluminum: The EU will continue to pay the existing 50% tariff rate, but the EU says the deal will set up a quota system. Under that proposed system, EU exports that fall within the quota limit will be subject to from a lower tariff rate. But for exports above that, the 50% will apply, senior officials explained. The Commission said that since the deal is not finalized, there are no details to report.

The bottom line: There is no final trade agreement with the EU. Nothing is binding. Everything djt said about it is bullshit and false. 

Now, time to get back on the golf course to cheat on his golf game.

At ~6 seconds, the caddy on the right discretely drops golf 

ball behind himself so that djt has a better position