Emergency appeals have become the tool of choice for the conservative movement.
The conservative majority on the Supreme Court was so eager to nullify Roe v. Wade, the 1973 precedent securing the right to abortion, that it didn’t even wait for oral arguments.
Instead, in the middle of the night, five of the high court’s conservatives issued a brief, unsigned order allowing a Texas law that bans abortion at six weeks. The law also gives private citizens the authority to sue anyone who “knowingly … aids or abets” an abortion and rewards them with $10,000 if successful, essentially placing a bounty on anyone wishing to end a pregnancy, and anyone who might help them. Texas is now rewarding residents who snitch to the state on the most intimate details of other people’s lives.
“Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents,” Justice Sonia Sotomayor wrote in her dissent. “The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”
Also remarkable was that the Supreme Court acted through its “shadow docket,” the decisions the justices make regarding emergency appeals such as death-penalty cases. Under normal procedure, cases take time to work their way through the lower courts, and are received at the Supreme Court with extensive records, briefs, and oral arguments. Ideally, this allows the justices to ensure that their hugely consequential decisions are properly informed and made as carefully as possible, weighing all the relevant legal and constitutional issues. But there are some circumstances in which the Court needs to act quickly to prevent some imminent or irreversible harm. There’s nothing inherently sinister about that. The shadow docket, though, now resembles a venue where the conservative legal movement can get speedy service from its friends on the Court.
Over the past few years, the cases on the shadow docket have risen in significance, with the justices quietly making major changes to American law without the scrutiny or attention that comes with holding oral arguments or writing major opinions. Trump-administration attorneys found the Court’s conservative majority delighted to allow many of their most controversial policies to go forward. Under President Joe Biden, by contrast, the conservative justices have acted rapidly to block administration decisions, or to force Trump-era policies to remain in place.
“The term shadow is meant to evoke the understanding that what the Court is doing is not the way that decision making on an ordinary merits docket would happen,” says Melissa Murray, a law professor at NYU who clerked for Sotomayor while she was a federal judge. “I think it’s clear that it has become a shadowy way to effect substantive decisions in cases where the Court, in the light of day, would be more reluctant to move aggressively.”
The shadow docket has been a tremendously successful venue for the right. Stephen Vladeck, a law professor at the University of Texas at Austin who has closely followed the shadow docket, counts at least 41 requests for “emergency relief” submitted to the Court from the Trump administration, compared with eight under the Obama and Bush administrations combined. And he counts only four occasions during the Trump administration on which the Court denied “the government’s request outright.” That deference has not continued into the Biden administration.
“During the Trump administration, it was on the shadow docket that basically all of Trump’s controversial immigration policies affecting millions of people were allowed to go into effect, including the travel ban,” Vladeck told me. “During the Biden administration … perhaps the biggest shadow-docket ruling so far was the ruling last week that froze and effectively killed the CDC’s revised eviction moratorium.”
Under Trump, the justices allowed policies such as the administration’s travel ban targeted at mostly Muslim nations, its prohibition against trans people serving in the military, and its restrictions on asylum to go into effect. Under Biden, they have barred the administration’s attempt to prevent evictions because of the coronavirus pandemic and accepted a lower-court ruling demanding that the White House reimpose the controversial Trump-era “Remain in Mexico” policy, which forced migrants into “precarious conditions in dangerous Mexican border cities where thousands became victims of kidnappings, rapes and extortion,” according to The Washington Post. The decision compels the Biden administration to renegotiate an agreement with a foreign country reached during a prior administration; deference to the president’s constitutional authority to set foreign policy, which the justices had memorably cited in Trump-era cases, was suddenly absent.
“What is so troubling about this trend is its continuing acceleration, not in volume, but in quality,” Vladeck said. “The Court seems increasingly untroubled by deciding big questions that affect lots of people this way.” Having a conservative-dominated tribunal determine such questions, however, is an ideal arrangement for a party that has not won a majority of the votes in a presidential election since Tobey Maguire was Spider-Man, and that sees the popular majorities that vote against it as composed of illegitimate semi-citizens who have no right to govern.
The shadow docket has begun to look less like a place for emergency cases than one where the Republican-appointed justices can implement their preferred policies without having to go through the tedious formalities of following legal procedure, developing arguments consistent with precedent, or withstanding public scrutiny. And so after initially allowing the Texas law banning abortion before most women know they are actually pregnant to go into effect, five conservative justices told Republican-controlled states they could disregard Roe while insisting that wasn’t what they were doing at all.
Instead, the justices in the majority argued in their unsigned opinion that because the case presented “complex and novel antecedent procedural questions,” their hands were tied. This is ludicrously dishonest. If Texas passed a law granting $10,000 bounties to private citizens if they sued anyone who held or enabled an indoor church service during the pandemic, the Court’s conservative wing would not feign confusion about whether the constitutional right to freedom of worship had been violated because of the supposed novelty of the scheme.
This ruling is less a description of a complex legal challenge than a road map. As Mary Ziegler writes, the Texas law was strategically designed to evade legal restrictions, and the majority read the script that was handed to it. Republican-run legislatures now know that they can pass such laws and the Supreme Court will pretend to be unable to block them.
Among the Republican appointees, only Chief Justice John Roberts had enough respect for the right’s purported doctrines of judicial minimalism to vote to wait for the case to reach the high court through normal procedural channels. Ironically, though, the unsigned majority decision reflects a careful study of Roberts’s years of successfully managing the Court’s reputation. The decision does not say “Roe is hereby overruled,” but it tells states exactly how they can effectively ban abortion if they want to. In that, it echoes Roberts’s own tendency to hide his preferred outcomes behind legal technicalities, the better to mime fidelity to constitutional principle.
“Although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue,” Roberts wrote in his dissent. But because five justices allowed the law to go into effect—and by implication, laws in any other state that wishes to emulate Texas—Roe has been neutralized. The only question is whether that decision is temporary, and whether the Court will eventually enact any restraints on the particular legal scheme Texas has pioneered.
“I don’t think those in the reproductive-rights community who are sounding the alarm that [the Court] really effectively overruled Roe in Texas are being hyperbolic,” Murray told me yesterday, prior to the Court’s written opinion. “The fact that the Supreme Court of the United States allows a law that patently contradicts its own statements about the right to an abortion to go into effect is essentially the Court signaling that it does not care about this right and it does not think this right should exist.”
Neutralizing Roe through normal channels would have taken time, and the Supreme Court’s conservatives did not want to wait. Thanks to the shadow docket, they didn’t have to. Five conservative justices invalidated the constitutional right to an abortion simply because they could, because they felt like it, and because they don’t believe anyone can stop them.
Adam Serwer is a staff writer at The Atlantic, where he covers politics.
The Real Donald Trump Is a Character on TV
Understand that, and you’ll understand what he’s doing in the White House.
On Sept. 1, with a Category 5 hurricane off the Atlantic coast, an angry wind was issuing from the direction of President Trump’s Twitter account. The apparent emergency: Debra Messing, the co-star of “Will & Grace,” had tweeted that “the public has a right to know” who is attending a Beverly Hills fund-raiser for Mr. Trump’s re-election.
“I have not forgotten that when it was announced that I was going to do The Apprentice, and when it then became a big hit, Helping NBC’s failed lineup greatly, @DebraMessing came up to me at an Upfront & profusely thanked me, even calling me ‘Sir,’ ” wrote the 45th president of the United States.
It was a classic Trumpian ragetweet: aggrieved over a minor slight, possibly prompted by a Fox News segment, unverifiable — he has a long history of questionable tales involving someone calling him “Sir” — and nostalgic for his primetime-TV heyday. (By Thursday he was lashing Ms. Messing again, as Hurricane Dorian was lashing the Carolinas.)
This is a futile effort. Try to understand Donald Trump as a person with psychology and strategy and motivation, and you will inevitably spiral into confusion and covfefe. The key is to remember that Donald Trump is not a person. He’s a TV character.
I mean, O.K., there is an actual person named Donald John Trump, with a human body and a childhood and formative experiences that theoretically a biographer or therapist might usefully delve into someday. (We can only speculate about the latter; Mr. Trump has boasted on Twitter of never having seen a psychiatrist, preferring the therapeutic effects of “hit[ting] ‘sleazebags’ back.”)
But that Donald Trump is of limited significance to America and the world. The “Donald Trump” who got elected president, who has strutted and fretted across the small screen since the 1980s, is a decades-long media performance. To understand him, you need to approach him less like a psychologist and more like a TV critic.
He was born in 1946, at the same time that American broadcast TV was being born. He grew up with it. His father, Fred, had one of the first color TV sets in Jamaica Estates. In “The Art of the Deal” Donald Trump recalls his mother, Mary Anne, spending a day in front of the tube, enraptured by the coronation of Queen Elizabeth in 1953. (“For Christ’s sake, Mary,” he remembers his father saying, “Enough is enough, turn it off. They’re all a bunch of con artists.”)
TV was his soul mate. It was like him. It was packed with the razzle-dazzle and action and violence that captivated him. He dreamed of going to Hollywood, then he shelved those dreams in favor of his father’s business and vowed, according to the book “TrumpNation” by Timothy O’Brien, to “put show business into real estate.”As TV evolved from the homogeneous three-network mass medium of the mid-20th century to the polarized zillion-channel era of cable-news fisticuffs and reality shocker-tainment, he evolved with it. In the 1980s, he built a media profile as an insouciant, high-living apex predator. In 1990, he described his yacht and gilded buildings to Playboy as “Props for the show … The show is ‘Trump’ and it is sold-out performances everywhere.”
He syndicated that show to Oprah, Letterman, NBC, WrestleMania and Fox News. Everything he achieved, he achieved by using TV as a magnifying glass, to make himself appear bigger than he was.
He was able to do this because he thought like a TV camera. He knew what TV wanted, what stimulated its nerve endings. In his campaign rallies, he would tell The Washington Post, he knew just what to say “to keep the red light on”: that is, the light on a TV camera that showed that it was running, that you mattered. Bomb the [redacted] out of them! I’d like to punch him in the face! The red light radiated its approval. Cable news aired the rallies start to finish. For all practical purposes, he and the camera shared the same brain.
Even when he adopted social media, he used it like TV. First, he used it like a celebrity, to broadcast himself, his first tweet in 2009 promoting a “Late Show With David Letterman” appearance. Then he used it like an instigator, tweeting his birther conspiracies before he would talk about them on Fox News, road-testing his call for a border wall during the cable-news fueled Ebola and border panics of the 2014 midterms.
When he was a candidate, and especially when he was president, his tweets programmed TV and were amplified by it. On CNBC, a “BREAKING NEWS: TRUMP TWEET” graphic would spin out onscreen as soon as the words left his thumbs. He would watch Fox News, or Lou Dobbs, or CNN or “Morning Joe” or “Saturday Night Live” (“I don’t watch”), and get mad, and tweet. Then the tweets would become TV, and he would watch it, and tweet again.
If you want to understand what President Trump will do in any situation, then, it’s more helpful to ask: What would TV do? What does TV want?
It wants conflict. It wants excitement. If there is something that can blow up, it should blow up. It wants a fight. It wants more. It is always eating and never full.Some presidential figure-outers, trying to understand the celebrity president through a template that they were already familiar with, have compared him with Ronald Reagan: a “master showman” cannily playing a “role.”
The comparison is understandable, but it’s wrong. Presidents Reagan and Trump were both entertainers who applied their acts to politics. But there’s a crucial difference between what “playing a character” means in the movies and what it means on reality TV.
Ronald Reagan was an actor. Actors need to believe deeply in the authenticity and interiority of people besides themselves — so deeply that they can subordinate their personalities to “people” who are merely lines on a script. Acting, Reagan told his biographer Lou Cannon, had taught him “to understand the feelings and motivations of others.”
Being a reality star, on the other hand, as Donald Trump was on “The Apprentice,” is also a kind of performance, but one that’s antithetical to movie acting. Playing a character on reality TV means being yourself, but bigger and louder.
Reality TV, writ broadly, goes back to Allen Funt’s “Candid Camera,” the PBS documentary “An American Family,” and MTV’s “The Real World.” But the first mass-market reality TV star was Richard Hatch, the winner of the first season of “Survivor” — produced by Mark Burnett, the eventual impresario of “The Apprentice”— in the summer of 2000.
Mr. Hatch won that first season in much the way that Mr. Trump would run his 2016 campaign. He realized that the only rules were that there were no rules. He lied and backstabbed and took advantage of loopholes, and he argued — with a telegenic brashness — that this made him smart. This was a crooked game in a crooked world, he argued to a final jury of players he’d betrayed and deceived. But, hey: At least he was open about it!
While shooting that first season, the show’s crew was rooting for Rudy Boesch, a 72-year-old former Navy SEAL and model of hard work and fair play. “The only outcome nobody wanted was Richard Hatch winning,” the host, Jeff Probst, would say later. It “would be a disaster.” After all, decades of TV cop shows had taught executives the iron rule that the viewers needed the good guy to win.
But they didn’t. “Survivor” was addictively entertaining, and audiences loved-to-hate the wryly devious Richard the way they did Tony Soprano and, before him, J.R. Ewing. More than 50 million people watched the first-season finale, and “Survivor” has been on the air nearly two decades.
From Richard Hatch, we got a steady stream of Real Housewives, Kardashians, nasty judges, dating-show contestants who “didn’t come here to make friends” and, of course, Donald Trump.
Reality TV has often gotten a raw deal from critics. (Full disclosure: I still watch “Survivor.”) Its audiences, often dismissed as dupes, are just as capable of watching with a critical eye as the fans of prestige cable dramas. But when you apply its mind-set — the law of the TV jungle — to public life, things get ugly.
In reality TV — at least competition reality shows like “The Apprentice” — you do not attempt to understand other people, except as obstacles or objects. To try to imagine what it is like to be a person other than yourself (what, in ordinary, off-camera life, we call “empathy”) is a liability. It’s a distraction that you have to tune out in order to project your fullest you.
Reality TV instead encourages “getting real.” On MTV’s progressive, diverse “Real World,” the phrase implied that people in the show were more authentic than characters on scripted TV — or even than real people in your own life, who were socially conditioned to “be polite.” But “getting real” would also resonate with a rising conservative notion: that political correctness kept people from saying what was really on their minds.
Being real is not the same thing as being honest. To be real is to be the most entertaining, provocative form of yourself. It is to say what you want, without caring whether your words are kind or responsible — or true — but only whether you want to say them. It is to foreground the parts of your personality (aggression, cockiness, prejudice) that will focus the red light on you, and unleash them like weapons.
Maybe the best definition of being real came from the former “Apprentice” contestant and White House aide Omarosa Manigault Newman in her memoir, “Unhinged.” Mr. Trump, she said, encouraged people in his entourage to “exaggerate the unique part of themselves.” When you’re being real, there is no difference between impulse and strategy, because the “strategy” is to do what feels good.
This is why it misses a key point to ask, as Vanity Fair recently did after Mr. Trump’s assault on Representative Elijah E. Cummings and the city of Baltimore in July, “Is the president a racist, or does he just play one on TV?” In reality TV, if you are a racist — and reality TV has had many racists, like Katie Hopkins, the far-right British “Apprentice” star the president frequently retweets — then you are a racist and you play one on TV.
So if you actually want a glimpse into the mind of Donald J. Trump, don’t look for a White House tell-all or some secret childhood heartbreak. Go to the streaming service Tubi, where his 14 seasonsof “The Apprentice” recently became accessible to the public.
You can fast-forward past the team challenges and the stagey visits to Trump-branded properties. They’re useful in their own way, as a picture of how Mr. Burnett buttressed the future president’s Potemkin-zillionaire image. But the unadulterated, 200-proof Donald Trump is found in the boardroom segments, at the end of each episode, in which he “fires” one contestant.
In theory, the boardroom is where the best performers in the week’s challenges are rewarded and the screw-ups punished. In reality, the boardroom is a new game, the real game, a free-for-all in which contestants compete to throw one another under the bus and beg Mr. Trump for mercy.
There is no morality in the boardroom. There is no fair and unfair in the boardroom. There is only the individual, trying to impress Mr. Trump, to flatter Mr. Trump, to commune with his mind and anticipate his whims and fits of pique. Candidates are fired for
- being too nice to their adversaries (weak), for
- giving credit to their teammates, for
- interrupting him.
The host’s decisions were often so mercurial, producers have said, that they would have to go back and edit the episodes to impose some appearance of logic on them.
What saves you in the boardroom? Fighting. Boardroom Trump loves to see people fight each other. He perks up at it like a cat hearing a can opener. He loves to watch people scrap for his favor (as they eventually would in his White House). He loves asking contestants to rat out their teammates and watching them squirm with conflict. The unity of the team gives way to disunity, which in the Trumpian worldview is the most productive state of being.
And America loved boardroom Trump — for a while. He delivered his catchphrase in TV cameos and slapped it on a reissue of his 1980s Monopoly knockoff Trump: The Game. (“I’m back and you’re fired!”) But after the first season, the ratings dropped; by season four they were nearly half what they were in season one.
He reacted to his declining numbers by ratcheting up what worked before: becoming a louder, more extreme, more abrasive version of himself. He gets more insulting in the boardroom — “You hang out with losers and you become a loser”— and executes double and quadruple firings.
It’s a pattern that we see as he advances toward his re-election campaign, with an eye not on the Nielsen ratings but on the polls: The only solution for any given problem was a Trumpier Trump.
Did it work for “The Apprentice”? Yes and no. His show hung on to a loyal base through 14 seasons, including the increasingly farcical celebrity version. But it never dominated its competition again, losing out, despite his denials, to the likes of the sitcom “Mike & Molly.”
Donald Trump’s “Apprentice” boardroom closed for business on Feb. 16, 2015, precisely four months before he announced his successful campaign for president. And also, it never closed. It expanded. It broke the fourth wall. We live inside it now.
Now, Mr. Trump re-creates the boardroom’s helter-skelter atmosphere every time he opens his mouth or his Twitter app. In place of the essentially dead White House press briefing, he walks out to the lawn in the morning and reporters gaggle around him like “Apprentice” contestants awaiting the day’s task. He rails and complains and establishes the plot points for that day’s episode:
- Greenland!
- Jews!
- “I am the chosen one!”
Then cable news spends morning to midnight happily masticating the fresh batch of outrages before memory-wiping itself to prepare for tomorrow’s episode. Maybe this sounds like a TV critic’s overextended metaphor, but it’s also the president’s: As The Times has reported, before taking office, he told aides to think of every day as “an episode in a television show in which he vanquishes rivals.”
Mr. Trump has been playing himself instinctually as a character since the 1980s; it’s allowed him to maintain a profile even through bankruptcies and humiliations. But it’s also why, on the rare occasions he’s had to publicly attempt a role contrary to his nature — calling for healing from a script after a mass shooting, for instance — he sounds as stagey and inauthentic as an unrehearsed amateur doing a sitcom cameo.
His character shorthand is “Donald Trump, Fighter Guy Who Wins.” Plop him in front of a camera with an infant orphaned in a mass murder, and he does not have it in his performer’s tool kit to do anything other than smile unnervingly and give a fat thumbs-up.
This is what was lost on commentators who kept hoping wanly that this State of the Union or that tragedy would be the moment he finally became “presidential.” It was lost on journalists who felt obligated to act as though every modulated speech from a teleprompter might, this time, be sincere.
The institution of the office is not changing Donald Trump, because he is already in the sway of another institution. He is governed not by the truisms of past politics but by the imperative of reality TV: never de-escalate and never turn the volume down.
This conveniently echoes the mantra he learned from his early mentor, Roy Cohn: Always attack and never apologize. He serves up one “most shocking episode ever” after another, mining uglier pieces of his core each time: progressing from profanity about Haiti and Africa in private to publicly telling four minority American congresswomen, only one of whom was born outside the United States, to “go back” to the countries they came from.
- The taunting.
- The insults.
- The dog whistles.
- The dog bullhorns.
- The “Lock her up” and “Send her back.”
All of it follows reality-TV rules. Every season has to top the last. Every fight is necessary, be it against Ilhan Omar or Debra Messing. Every twist must be more shocking, every conflict more vicious, lest the red light grow bored and wink off. The only difference: Now there’s no Mark Burnett to impose retroactive logic on the chaos, only press secretaries, pundits and Mike Pence.
To ask whether any of this is “instinct” or “strategy” is a parlor game. If you think like a TV camera — if thinking in those reflexive microbursts of adrenaline and testosterone has served you your whole life — then the instinct is the strategy.
And to ask who the “real” Donald Trump is, is to ignore the obvious. You already know who Donald Trump is. All the evidence you need is right there on your screen. He’s half-man, half-TV, with a camera for an eye that is constantly focused on itself. The red light is pulsing, 24/7, and it does not appear to have an off switch.