Neil Siegel (Texas A&M University School of Law) has posted Judicial Self-Protection in the Shadows (Northwestern University Law Review, forthcoming) on SSRN. Here is the abstract:
Because the U.S. Supreme Court is not only powerful but also vulnerable, it is both inevitable and (within limits) appropriate that it seeks to protect its institutional authority when it faces acute political threats to that authority. This Essay offers theoretical reasons to expect that the Court will practice judicial self-protection in certain cases involving exercises of presidential power on its shadow docket in addition to its merits docket, as well as suggestive evidence that it did so in the early months of the second Trump administration as it appeared to work to secure the political foundations of its own authority. That is, the Court seemed to move from a more self-protective posture to a more self-assertive one as it gained confidence in the willingness of the second Trump administration to comply with its orders. This Essay also identifies an important instance in which the Court practiced judicial self-assertion instead of—or, rather, in addition to—judicial self-protection because it believed that the Executive was violating the basic rights of individuals who could not protect themselves. Finally, although it is difficult to normatively assess the Court’s self-protective and self-assertive performances while the second Trump administration is still in progress, this Essay attempts a preliminary evaluation. With an important exception involving the administration’s clear, repeated defiance of the orders of a federal district court at a time when the Court had good reason to believe that the government would comply with its own orders, this Essay concludes—without generally endorsing the Court’s decisions during this period—that the Court appears to have largely done an effective job of balancing its political responsibility to safeguard its own authority against its legal responsibility to protect the Constitution and the rule of law as it understands them.
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