This unconventional take hints at something unfolding behind the scenes over the last ten months.
For a long stretch, Justice Kagan publicly challenged the Supreme Court’s handling of emergency applications. In written dissents and in public talks, she fed into the troubling “shadow docket” narrative. She could have endorsed Steve Vladeck’s book, for all we know. Yet, over the past year she has dialed back that rhetoric. In fact, Kagan suggested she would rather not label it the shadow docket any longer, arguing that the Court has begun to explain its actions more clearly—“to a moderate degree,” as she put it. She added that the Court has become more seasoned in handling the steady stream of emergency-relief requests, issuing opinions—whether majority or dissenting—accordingly and when appropriate.
Kagan was almost certainly alluding to Trump v. Cook, a case that looked like the slowest emergency docket in history. Recall that President Trump sought to remove Governor Lisa Cook from the Federal Reserve on August 25, 2025. Twelve days later, the District Court granted a preliminary injunction. Four days after that, the D.C. Circuit denied the government’s motion to stay. The case landed before the Supreme Court on September 18, 2025. It would take the Court more than 280 days to issue a decision in its “interim” posture, producing more than 80 pages of majority, concurring, and dissenting opinions combined.
Justice Alito’s dissent laid out the painfully slow timeline.
The President then applied for a stay from this Court. When that application arrived here, this litigation was just 21 days old. There had been only two rounds of abbreviated briefing below and no meaningful development of a factual record. Indeed, the record does not even contain copies of Cook’s allegedly fraudulent mortgage applications. Of course, parties may appropriately seek (and courts may appropriately grant) stays early in a litigation. No court, including this Court, should sit on its hands when interim relief is appropriate. But this does not mean that the Court must reach out to opine on each issue that could conceivably arise in a case’s future. Here, the incipiency of this case and the complexity of the issues that it presents counseled in favor of a light touch by this Court, regardless of whether we granted or denied the application. To that end, the Court should have resolved the President’s application shortly after we received it. And in doing so, we should have focused on the few issues that the courts addressed below. If a majority had desired, we could have issued a statement explaining our decision. That is exactly how we have handled nearly all our stay applications in recent years.
Had the Court denied the stay in September or October 2025, the lower courts could have moved forward on the merits and put the Supreme Court before a normal appeal. Yet, the Court—by the Court, here meaning the Chief Justice—took a different route. Alito elaborates further:
Although the panel performed admirably given the four days that it had to decide the President’s stay motion, nobody can doubt that the panel would have produced more comprehensive opinions if it had even a fraction of the 280-plus days that this Court has spent with the case. Either way, this Court could have reentered the fray when we inevitably granted certiorari. Instead, the Court departed from its normal practice and “deferred” ruling on this application, bringing proceedings in the lower courts to a 9-month standstill. 606 U. S. 1062 (2025). We then ordered the parties to submit more briefing than they had filed at any other point in this litigation. In January, we held oral argument, marking just the second in-court proceeding in this entire suit. The Court now issues a full-length opinion that purports to resolve many complicated and novel legal questions on an underdeveloped record while ignoring lurking jurisdictional issues.”Either out of humility or out of self-respect (one or the other), the Court should decline to answer” these “incredibly difficult” questions in this case’s current posture. PGA TOUR, Inc. v. Martin, 532 U. S. 661, 700 (2001) (Scalia, J., dissenting).
Moreover, the Court reached to decide several significant constitutional questions that were not essential to the core dispute. Is the Federal Reserve’s so-called “independence” compatible with the separation of powers? Do the federal courts even possess jurisdiction to review the President’s termination of a Governor? Did Cook actually have a valid “cause of action” to challenge her removal? Justice Barrett raises these—among other—questions in her concurrence. Yet the Court seemed content to resolve a landmark case on its emergency docket, skipping past prudential considerations. This unusual posture likely placated Justice Kagan and critics of the Court, but it clashes with the Chief’s stated operating style.
Indeed, something appears to have shifted behind the scenes in this case. In most instances, the Chief Justice barely acknowledges dissenters, offering only sparse replies when he does. In Barbara, the dissents ran more than five times the length of the majority opinion. Roberts abstained from replying because he held the votes needed anyway.
Yet in Cook, Chief Justice Roberts answers Justice Thomas almost point-by-point. I take this as part of an effort to justify the Court’s choice to address the constitutional question. One might have expected Roberts to say in a footnote, “We need not reach the constitutional status of the Federal Reserve’s for-cause protections…” Yet that is not what happened. The Federal Reserve cannot be left in limbo, so the response is directed at the outspoken Justice Thomas.
Then comes this passage where Roberts replies directly to his colleagues:
How much to say on our interim docket—and how much to say in response to a dissent—is not reducible to any mechanical formula; it is ultimately a matter of prudence, upon which reasonable minds can (and often do) disagree. See Mirabelli v. Bonta, 607 U. S. 492, 501 (2026) (BARRETT, J., concurring) (“Interim applications routinely require the Court to balance the lock-in risk of saying too much against the transparency cost of saying too little”); compare Trump v. Illinois, 607 U. S. ___ (2025), with id., at ___ (KAVANAUGH, J., concurring in judgment) (slip op., at 6), and id., at ___ (GORSUCH, J., dissenting) (slip op. at 2). In this extraordinary case, we have had the benefit of not only amici and oral argument but months of internal consultation and deliberation. We see no reason to leave the public in limbo, or to sow doubt as to the status of one of our Nation’s (and the world’s) most important financial institutions. Although we appreciate that others may see matters differently, wewould not so quickly unsettle this “special arrangement sanctioned by history.” Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd., 601 U. S. 416, 467, n. 16 (2024) (ALITO, J., dissenting).
First, Roberts criticizes Barrett for inconsistency. In Mirabelli (decided in March 2026), Barrett favored deciding the merits, even at the risk of lock-in. Indeed, the Chief Justice joined that opinion. I was surprised Roberts joined that concurrence, since he typically refrains from comment on emergency docket cases. Yet that join now seems meaningful. Roberts joined Barrett’s concurrence, even though Barrett did not join Roberts in Cook. He may have even joined Barrett to prod her toward changing her stance in Cook. Roberts likely authored the narrow per curiam in Mirabelli. Why push further?
Second, Roberts contrasts Justice Kavanaugh’s concurrence in Trump v. Illinois with Justice Gorsuch’s dissent. In that instance, Kavanaugh would have demanded more briefing and oral argument—precisely what occurred in Cook. By contrast, in Illinois, Gorsuch would not have decided the merits with such limited briefing. Here, Roberts seems to be giving weight to Kavanaugh’s concerns.
Third, the Chief appears to break the fourth wall. He explicitly mentions “months of internal consultation and deliberation.” What’s going on? It goes without saying that justices always engage in consultation and deliberation. But “months”? The case was filed in September, argument was scheduled for the next month, argued in January, and decided on the last day of June. My sense is that deliberations continued well past the oral argument, perhaps through the termination of the term. It seems Kavanaugh and the Chief were aligned from the start. This line adds to evidence that Barrett may have wavered in Cook.
There is much more I could say about Cook in a future piece, especially in contrast with
I value Richard Re’s efforts to reconcile the Chief Justice’s votes in Cook and , as well as the Court’s decisions over two decades. Yet the explanations have grown increasingly hard to follow. He presents himself as an “institutionalist”; he is an “institutionalist” who also practices the doctrine of “one last chance”; he is an institutionalist who adheres to that doctrine yet “moderates from the front”; he is an institutionalist who adheres to the doctrine of “one last chance” while still “moderating from the front” except when “extremism in defense of stability is no vice.”
The ancients who clung to a geocentric view kept confronting data that didn’t fit the model. So they devised epicycles to account for planetary retrograde motion. Over time, science recognized the geocentric model as incorrect and the solar system was seen to revolve around the sun.
Our legal order has revolved around the Chief Justice for so long that one might seek a single unifying theorem. Yet the simplest explanation is probably the right one. Roberts is in charge—not because he is the brightest judge or because he puts forth the strongest theories, but, much like when he was an advocate, because he found a way to assemble a majority when it mattered. Or, more precisely, to assemble a four-vote majority—he has the decisive vote in hand.
My conclusion, drawn some time ago, is that Roberts is entirely situational. He decides each case on its own terms, shaped by the political climate of the day. He does as much as he believes he can get away with—neither more nor less. In some cases, restraint. In others, assertiveness. Prudence yields to necessity when the cause is compelling. And the Chief Justice uses whatever approach is needed to reach that result.
Roberts is not an institutionalist. He is an illusionist. Yet like all illusionists, once the show ends, his memory might fade quickly. Chief Justice Marshall’s rulings endure. Will anyone even recall the kinds of political compromises the Roberts Court navigated? Why did he vote to preserve Obamacare? Why did he vote to preserve Roe? I can barely recall the episodes from the first Trump administration. Roberts’s opinions may well fade as if written in disappearing ink.
