Dismantling It All With A Whisper

The Supreme Court’s “Shadow Docket” is letting the Trump White House burn it all down

US President Donald Trump shakes hands with US Supreme Court Associate Justice Amy Coney Barrett. Photo by SAUL LOEB / AFP.

One of the most historically consequential rulings of the Supreme Court came down yesterday. But you wouldn’t know it from the order itself.

That’s because it comes to us again off the Supreme Court’s so-called “Shadow Docket,” which the radical majority of justices has wielded to horrifying effect. All we get is a decision, without explanation, and we must rely upon the dissent (once more, of the three liberal justices) to try to parse what just happened.

And what just happened was this: The White House has been trying to destroy the Department of Education since Trump first took office. But doing so outright would be contrary to law. So instead, the White House is demolishing it from within by firing half of the people who work there, rendering it incapable of performing many of its most basic responsibilities.

And through its unsigned, unexplained order, SCOTUS just allowed that process to continue.

How it’s doing so takes a bit of explanation and some understanding of how things are supposed to work. So let’s start there, and then we can grasp how the extremists upended it without even explaining the why, the what or the how.

Only Congress can eliminate the Department of Education

As a refresher, the Education Department’s roles and responsibilities include distributing federal student aid, investigating civil rights violations, providing funding to low-income schools, and ensuring public education for children with disabilities.

Contrary to popular misconception, the Education Department does not do any actual “educating” of students; that is still the purview of the states.

On March 20, 2025, Trump issued an Executive Order in which he directed the Education Secretary, Linda McMahon, to

take all necessary steps to facilitate the closure of the Department of Education and return authority over education to the States and local communities while ensuring the effective and uninterrupted delivery of services, programs, and benefits on which Americans rely.

While his Executive Order maligned the Department as a body that has “entrenched the education bureaucracy” and has “sought to convince America that Federal control over education is beneficial,” Trump acknowledged that “Congress created the Department of Education in 1979 at the urging of President Jimmy Carter.”

As a creation of Congress, the Department can only be shuttered by Congress—at least in principle, that’s how it’s supposed to work.

Wiping out the workforce

So, how do you shut down a department without violating this principle? Mass layoffs, for starters.

Federal layoffs have been gathering steam for some time, interrupted often by lawsuits challenging their legality. CNN recently conducted a review of all of the actual and planned layoffs within the federal government so far under Trump 2.0, and it concluded that 51,244 workers have been affected. Among these, within the Education Department, there have been 1,378 workers laid off.

That’s a whopping 33 percent of its workforce.

But McMahon isn’t done. She actually wants to get rid of half of the department’s workers. About nine days before Trump issued the Executive Order, McMahon had already announced a “reduction in force” to eliminate “nearly 50% of the Department’s workforce” by slashing the number of employees from 4,133 to 2,183.

McMahon didn’t mince words about her intentions. Speaking about her boss Donald Trump’s goals, she confirmed to Laura Ingraham of the Fox Network that this was “the first step to a total shut down” of the Department. She explained, however,

“His directive to me, clearly, is to shut down the Department of Education which we know we'll have to work with Congress to get that accomplished."

We should call it what it is: a de facto shutdown. McMahon ordered the Department’s buildings shuttered for two days as she issued pink slips to some 2,000 workers.

As Justice Sotomayor explained in her dissent, the terminations eliminated whole offices and teams within the Department:

• The entire Office of English Language Acquisition, which administers the Department’s bilingual education programs;

• Everyone in the Office of the General Counsel specializing in K-12 education funding and Individuals with Disabilities Education Act (IDEA) grants;

• Seven of the twelve regional divisions of the Office of Civil Rights;

• Most of the Federal Student Aid office responsible for certifying schools so students can receive federal financial aid; and

• The entire unit of the Office of Special Education and Rehabilitative Services, which provides technical assistance and guidance on complying with the IDEA.

Justice Sotomayor noted that, under law, “Many of the affected offices and functions can be “consolidate[d], alter[ed], or discontinu[ed]” only by Congress. And as for the offices the Secretary could lawfully discontinue, McMahon had failed to provide the requisite 90-day notice and report to Congress.

The Trump regime wants other departments to handle much of the work while the Education Department is dismantled. For example, it wants to move federal student loans—some $1.6 trillion affecting 43 million borrowers—under the Treasury Department. IDEA grants, McMahon suggested at her Senate confirmation hearing, could go to the Department of Health and Human Services, while civil rights cases would be handed over to the Justice Department—where the focus of “civil rights” lately has been on white male Americans’ alleged injuries from “DEI” programs.

Litigation halts layoffs, reinstates employees

A group of 20 blue states plus the District of Columbia sued the Department, arguing that the force reductions had effectively dismantled the Department by incapacitating it from “performing functions mandated by statute.”

Another suit followed, this one from a group of school districts and unions challenging McMahon’s March 11 directive and Trump’s Executive Order. After the district court consolidated these cases, the plaintiffs all sought preliminary injunctions.

Those injunctions are critical to the success of the case. Most importantly, they freeze the status quo so that the plaintiffs aren’t harmed merely by the passage of time. The plaintiffs submitted dozens of affidavits explaining the harm from the layoffs and how they were already affecting critical services that depend on the timely distribution of funds. Against this, the government offered no evidence, other than to reassert that the executive branch has the power to streamline its own departments.

The district court granted a preliminary injunction, finding that the government’s true intention “is to effectively dismantle the Department without an authorizing statute,” and that the terminations would prevent the Department from “carry[ing] out its statutory functions.” The court further determined that the Department had acted arbitrarily and capriciously in violation of the Administrative Procedure Act by failing to provide reasonable explanations for the terminations.

The district court ordered all laid-off federal employees within the Department of Education be reinstated so that the agency could continue to carry out its functions.

The Trump regime quickly appealed to the First Circuit, requesting that it pause the court’s employee reinstatement order. The panel refused, chastising the government for “not even attempt[ing] to engage with the District Court’s record based findings” on the force reduction, “the intent behind both it and the transfer of functions to shut down the Department,” or “the disabling impact of those actions on the Department’s ability to carry out statutorily assigned functions.”

The appellate panel also took note that the plaintiffs faced serious irreparable harm from the “Department’s inability to provide its statutorily mandated services.”

That’s when the Trump White House sought help from the Supreme Court.

The Shadow Docket’s legal black hole

It has become a favorite tactic of the radicals on the Supreme Court to use time as a weapon by allowing unconstitutional actions to continue and then utterly fail to explain why.

A notable example occurred in 2021, when SCOTUS let stand an anti-abortion law in Texas, known as S.B. 8, without providing any reasoning behind it. Ms. Magazine put it both eloquently and succinctly:

Shortly before midnight on September 1, the Supreme Court issued an unsigned, one-paragraph opinion letting stand the Texas abortion ban S.B. 8—otherwise known as the “Texas Heartbeat Act,” which essentially guts access to abortion in Texas while technically preserving Roe v. Wade and Planned Parenthood v. Casey. In other words, the Supreme Court permitted the evisceration of Roe without any constitutional analysis.

With this ruling, the Supreme Court’s so-called shadow docket can no longer be denied, nor can its increasingly unusual manner of judicial review be ignored. Both raise concerns about the rule of law and independent judicial review, not to mention the legitimacy and credibility of the U.S. Supreme Court.

In her dissent on the S.B. 8 case, Justice Sotomayor called the Supreme Court’s order “stunning” and blasted it as flouting “nearly 50 years of federal precedents.”

“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand,” she wrote. “The act is a breathtaking act of defiance—of the Constitution, of this court’s precedents, and of the rights of women seeking abortions throughout Texas.”

The move was a signal of what was to come. In June of the next year, the Court struck down federal abortion rights protections in the Dobbs decision, which overturned Roe v. Wade and those “50 years of federal precedents.”

Letting the White House burn it down

On Monday, through yet another single-paragraph, unsigned order, the Supreme Court’s majority granted the White House’s request for a stay of the district court’s reinstatement order on the fired Department of Education employees.

In plainer terms, this means the Court agreed that the firings could continue even if they ultimately are found to be unlawful. This gets the whole purpose of a preliminary injunction backward. And it will be nearly impossible to unwind the damage once the consequences of those firings become permanent.

As Justice Sotomayor, once again in dissent, noted,

When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it.

She observed that both the district court and the appellate court had agreed the mass firings should be paused while the litigation was ongoing. This made sense because only Congress has the power to dissolve the Department of Education, while the executive’s job is to see that laws get faithfully executed. That’s the whole basis of the Separation of Powers under our constitution. Still, the Court chose the other path:

Rather than maintain the status quo, however, this Court now intervenes, lifting the injunction and permitting the Government to proceed with dismantling the Department.

She pointed out, correctly, that such a move hands the White House the power to essentially repeal statutes by mass firings, getting rid of everyone it needs to carry the laws out. She added,

The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave.

We still have no clear idea why the court’s order got paused

On top of the frustration from, and the danger of, SCOTUS allowing a presumptively illegal course of action to continue, there is also a decided lack of clarity over why. The Court majority has now told us that the district court was wrong, but it hasn’t explained its reasoning at all.

1. Was it because the plaintiff states and local school boards lacked standing, meaning they weren’t really injured in a way that the Court believes it can remedy?

2. Was it because the plaintiffs failed to bring their case first through some kind of proper administrative channels, even though the administrative agencies one would normally begin with have themselves been gutted and are dysfunctional?

3. Or does the Court majority really believe that the White House, under some kind of “unitary executive theory,” has sole power to gut the federal work force and essentially impound funds appropriated by Congress to pay for their salaries?

If it’s one of the first two reasons, that has far less constitutional import than the third. But there’s no guidance here whatsoever.

In practical terms, that means the district court now has to go through a whole trial to determine whether a permanent injunction should issue—only to risk that its ruling gets overturned on yet another appeal to SCOTUS because, for example, the plaintiffs didn’t have standing after all in the eyes of the Court’s majority.

This is no way to run a judicial system. As Georgia State law professor Anthony Michael Kreis bitterly observed,

The Supreme Court’s job is to preserve the status quo until legal questions are resolved and explain the disposition of cases for the public. They are abdicating basic principles of equity and failing to fulfill their institutional role. They aren’t even attempting to do law.

Disturbingly, this may not start and end with cases about the executive branch’s authority over its agencies. The shadow docket rulings could begin to greenlight other patently illegal or even unconstitutional acts, just as it did with S.B. 8 in Texas over abortion.

Will the Court put a hold on preliminary injunctions that forbid the White House from eliminating birthright citizenship? Will it freeze orders preventing ICE from holding undocumented immigrants indefinitely or from sending U.S. citizens to foreign prisons?

Will the Court ever even tell us why it ruled the way it did?

The hypocrisy is galling

Chris Geidner was on point with his analysis of the ruling, such as it was:

Monday’s ruling would be offensive to the rule of law in any scenario, but for Chief Justice John Roberts, in particular, to do so in a case involving the Education Department, in particular, it is little more than the Chief Justice of the United States laughing in the face of Americans and the rule of law.

It was Roberts, after all—and only two years ago—who held that President Biden had overstepped because his Education Secretary had interpreted the “waive or modify“ language in the HEROES Act to include the forgiving of student loans.

That, Roberts opined in another 6–3 ruling (this time actually written out!), was impermissible:

The Secretary asserts that the HEROES Act grants him the authority to cancel $430 billion of student loan principal. It does not. We hold today that the Act allows the Secretary to "waive or modify" existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up.

So Biden’s Education Secretary can’t “waive” student loans, even though a statute expressly says “waive,” but Trump’s Education Secretary can fire half the Department in an open campaign to shut the whole Department down?

The only way this makes any sense is to presume that the Court has one set of rules for Republican administrations and another entirely for Democratic ones.

Devastating consequences

Based on its actions, we should presume that the Court is fully prepared to give a blank check to the White House to conduct reductions in force, not only in the Education Department, but across the entire federal government. Along the way, the Court is not going to tell us why this is permitted. It’s only going to put its finger on the scale for Trump in pretty much all cases.

Laid-off federal workers whose cases were on hold will now be let go permanently. This will lead to more gaps in services, the inability of those remaining to cover the shortfalls, and a government-wide deterioration in what services are provided.

The right-wing, Project 2025-driven ideology that “government doesn’t work” will ultimately become self-fulfilling because there won’t be enough people remaining in our federal workforce to operate it effectively. Government won’t work because they broke it. Those federal employees who remain will be demoralized, overworked and looking for the exits.

Americans are about to discover the truth of the saying, “You don’t know what you’ve lost till it’s gone.” Those who claim they despise FEMA until disaster strikes, who rail against government healthcare while depending on Medicaid, who mock medical science funding until they need a cure for their disease, and who demand the Education Department be shuttered while their own child is special needs—they are all sadly about to understand the hard way what they’ve voted for.

Whether voters wind up blaming the regime that took it all away from them, or ever will remotely understand how this right-wing Supreme Court helped that happen, remains an open question.