The Dictatorship
Justice Kagan calls for big change to Supreme Court’s shadow docket practices
It’s been an active few months for the Supreme Court’s so-called shadow docket as the Trump administration seeks to push through its legally dubious agenda via emergency appeals. And one of the justices is raising a key concern with the process.
On Thursday, Elena Kagan, one of three Democratic-appointed justices, called out the court for its practice of issuing unsigned orders with little to no explanation for cases on the emergency docket, also known as the shadow docket.
“The need to explain things,” the Obama appointee told the audience at the 2025 Ninth Circuit Judicial Conference in Monterey, California, is likely the “most important” issue related to the emergency docket.
“What we started doing when we started doing these things is just issuing orders,” Kagan said. “But I think that that’s not the right way to approach it, because the orders themselves don’t tell anybody anything about why we’ve done what we’ve done.”
“A court is supposed to explain things,” she continued. “That’s what courts do. They’re supposed to explain things to litigants. They’re supposed to explain things to the public generally.”
As the court takes up more and more cases via the emergency docket, Kagan said the justices have a “real responsibility” to clarify the reasoning behind their decisions. “I don’t mean like we should write 50-page magnum opuses,” she noted. “I think, you know, one or two or three pages would do.”
The Trump administration has sought relief in more than a dozen emergency docket appeals so far this year, with the Supreme Court’s Republican-appointed majority granting many of them. Though some justices have written or joined dissents to explain their disagreement with some of the court’s decisions, the majority has not often explained its reasoning.
As Kagan suggested on Thursday, the absence of explanation can be confusing for litigants, lower courts and the public. She highlighted the court’s recent decision to allow the Trump administration to move forward with its efforts to dismantle the Education Department as litigation on the matter continues.
“A casual observer might think, ‘Oh, the president does have legal authority to dismantle the Education Department,’” Kagan said. She pointed out that the solicitor general, who represents the federal government in cases before the Supreme Court, “didn’t even present that to us as an argument.”
The merits of the case “weren’t even before us,” Kagan said. Instead, a variety of remedial issues, including standing and whether the appeals court that issued the injunction had jurisdiction, were at the heart of the appeal.
“And we didn’t say anything about any of those things,” Kagan said. “So that court that issued that order — like, what’s that court supposed to think? …. It’s just impossible to know.”
Hayley Miller is the senior blog editor for BLN. Previously, she was a senior reporter on HuffPost’s breaking news team. Before she was a reporter, she was a senior editor on HuffPost’s blog team.
FORT WORTH, Texas (AP) — Eight protesters accused by the Justice Department of having ties to antifawere sentenced Tuesday to decades in federal prison over a shooting outside a Texas immigration detention center that wounded a police officer. Prosecutors have called the shooting an act of terrorism.
One of the defendants, a former U.S. Marine Corps reservist convicted of opening fire during the July 4 demonstration outside the Prairieland Detention Center near Dallas, was sentenced to 100 years in prison, the maximum punishment.
The lengthy sentences were condemned by family members and supporters in a news conference outside the federal courthouse in Fort Worth. Hope Song, whose son Benjamin Songreceived the heftiest sentence, disputed prosecutors’ claims that her son shot the officer and said he didn’t intend to hurt anyone.
U.S. District Judge Reed O’Connor, one of two judges overseeing the proceedings, said what happened wasn’t a protest but “an assault on democracy.”
“The need to deter this type of conduct is high,” O’Connor said.
The seven other protesters received prison terms ranging from 30 to 70 years.
Prosecutors said the eight are members of antifa, a decentralized anti-fascist organization and a targetof the Trump administration. Antifa is not a single organization but rather an umbrella term for far-left militant groups that confront or resist neo-Nazis and white supremacists at demonstrations.
President Donald Trump last fall signed an executive order designating antifa a domestic terrorist organization, even though there is no domestic equivalent to the State Department’s list of foreign terror organizations.
The defendants deny any affiliation with antifa and maintain they attended the demonstration in support of detained immigrants.
Prosecutor Frank Gatto urged the judge to impose stiff penalties.
“People with that kind of extremist beliefs need extra time in prison,” Gatto said. “They believe violence is justified.”
Phillip Hayes, Song’s attorney, said outside the courthouse that he takes issue with the idea that the protesters are extremists.
“This is a bunch of kids and young adults who really have a really big heart and really wanted their voice to be heard,” Hayes said. “It was never intended that anybody get hurt. It was never intended that any shots would be fired.”
Prosecutors said in court that Song had yelled “get to the rifles” and opened fire, striking a police officer who had just pulled up to the center.
Hayes argued that Song’s shots were “suppressive fire” and that a ricochet bullet hit the officer after he arrived on the scene and “aggressively” pulled out his firearm. He said his client will appeal the 100-year sentence.
“Song, aside from this day, has had an impeccable life. A former Marine. A good student,” Hayes said. “He had a lot of good qualities that were just ignored. The judge went ahead and gave as much as he could.”
Other defendants and their family members pleaded for leniency in court.
Autumn Hill said the gathering “seemed more like a party to me than anything else” and that she and others who participated “didn’t expect or want any violence or destruction of property to occur.”
Amber Lowrey told the judge that her sister, Savanna Batten, is a compassionate person with dreams of opening a bakery. She said Batten’s activism started with animal rights and evolved into anti-war and human rights advocacy.
“She’s the best person I know,” Lowrey said.
Hill and Batten both received 50-year sentences.
Other defendants previously pleaded guilty to providing material support to terrorists rather than take their case to trial.
Critics warn the case could have a wide-reaching impact on protests given that organizations operating within the U.S. are supposed to be protected by First Amendment free-speech rights.
Last week, federal prosecutors charged 15 peoplewith impeding the Trump administration’s immigration crackdownin Minnesota. They claimed the demonstrators were members of antifa who conspired against the federal government to block arrests and deportations by setting up blockades around government buildings and throwing chunks of ice at federal vehicles, among other actions.
The Dictatorship
Tulsi Gabbard and Senate GOP face difficult new questions over influence of her ‘guru’
About a month into Donald Trump’s second term, Senate Republicans weighed whether to confirm one of the president’s worst nominees. Indeed, the list of reasons to reject Tulsi Gabbard’s nomination for director of national intelligence was not short.
The former congresswoman lacked the requisite experience in intelligence matters. She had an indefensible habit of echoing Russian propaganda. She struggled to explain her record of defending Bashar al-Assad’s Syrian regime. Senators heard from former national security officials who issued unsubtle warnings about elevating Gabbard to an important and influential position.
But in case that weren’t quite enough, let’s also not overlook the fact that Gabbard was a member of a secretive Hare Krishna offshoot religious sect that is considered by many of its former members to be an abusive cult.
Gabbard, who wrapped up her tenure as DNI last week, has long insisted that any suggestion that she was somehow enthralled to or controlled by this sect or its leader, whom she has referred to as her “guru,” is just bigotry against her faith.
But it’s against this backdrop that The Washington Post obtained hundreds of secret memos prepared for Gabbard during her congressional tenure, which were put together by members of the alleged cult and which included thousands of pages of specific directives to her on policy and politics.
After careful analysis of thousands of these documents, which have not been independently verified by MS NOW, the Post determined that they likely came from Gabbard’s secretive guru, a man named Chris Butler.
The memos, starting in 2013, when the Hawaiian first arrived on Capitol Hill, reflect a dynamic in which Gabbard didn’t just take direction from the materials, but essentially took dictation from the alleged cult leader: Memos told Gabbard what she should do as a member of Congress, and she often did exactly that, sometimes word for word.
The Post’s Jon Swaine spent months trying to get Gabbard to respond to questions, but to no avail. Her spokeswoman reportedly encouraged Swaine to drop the story, saying, “I cannot imagine WaPo’s readers would be interested in yet another uncredible, bigoted attack on the DNI’s faith.”
On May 20, Swaine nevertheless alerted the DNI and top members of her staff to the fact that the Post was prepared to publish his reporting anyway on her association with Butler.
On May 22, Fox News reported that Gabbard was leaving the administration, ostensibly because of a health issue involving her husband.
This week, Senate Minority Leader Chuck Schumer spoke on the Senate floor and commented on the reporting:
There are reports that Tulsi Gabbard was receiving instructions from a so-called guru and repeating them word for word. That ought to concern all of us if it’s true. No one knows who this guru really is, what his connections are, and where the instructions came from. … We need answers.
The New York Democrat’s comments made sense, though it’s worth considering who, exactly, “we need answers” from.
It stands to reason, for example, that Gabbard has some explaining to do, but I’m also interested in the answers from those who elevated her to an influential intelligence office in the first place.
In February 2025, confronted with an avalanche of reasons to reject Gabbard’s nomination, 52 Senate Republicans — every GOP member except Kentucky’s Mitch McConnell — shrugged off every red flag and voted to confirm her as the nation’s DNI, including so-called “moderates” such as Maine’s Susan Collins and Alaska’s Lisa Murkowski.
The question for these 52 senators seems obvious: Do you regret that confirmation vote and now recognize it as a mistake? Or do you still think it was a good idea to put Gabbard in this influential intelligence position?
Steve Benen is a producer for “The Rachel Maddow Show,” the editor of MaddowBlog and an MS NOW political contributor. He’s also the bestselling author of “Ministry of Truth: Democracy, Reality, and the Republicans’ War on the Recent Past.”
In the lead-up to the Iran war, President Donald Trump dismissed the possibility that Tehran would close the Strait of Hormuz despite warnings from his top military adviser, authors of a new book told MS NOW’s Lawrence O’Donnell on Monday.
In their first televised interview about “Regime Change: Inside the Imperial Presidency of Donald Trump,” New York Times reporters Maggie Haberman and Jonathan Swan said Trump also disregarded warnings from Gen. Dan Caine, the chairman of the Joint Chiefs of Staff, about the potential effects on American weaponry and about casualties.
The initial closure of the strait, a narrow passageway through which a fifth of the world’s oil passes, led to a spike in gas and oil prices. According to Swan, Trump thought Iran would have limited time to take action because the war would be over quickly — a claim he has made repeatedly during the nearly four-month-long war.
“He felt that this regime was a paper tiger, that this was going to be a fast war,” Swan said on “The Last Word.” “He just said he felt that that was going to be the case, that they were going to collapse very quickly.”
“It’s a form of magical thinking, actually, is what it all boils down to,” he added.
The revelation is just one of several in the book — which is based on more than 1,000 interviews — that illustrate how Trump repeatedly bases geopolitical decisions on his own whims rather than experts’ assessments.
Another example of such thinking was when Trump floated a plan to expel 2 million Palestinians from Gaza so he could turn it into the “Riviera of the Middle East.” Haberman and Swan wrote in the book that one senior aide characterized the idea as “legitimately nutso … but very on-brand.”
Haberman also spoke about “how scared” people were inside the White House ahead of last year’s so-called Liberation Daywhen Trump unveiled sweeping global tariffs. (The Supreme Court struck down those tariffs in February.)
“They were scared at how close the bond markets came to just completely melting down seven days later, which was finally what got him [Trump] off of it, but again, it was the willingness to just go straight to the brink” that was jarring, Haberman said.
Despite such fear among Trump’s staff, Haberman added, the White House makes up “a group of people who genuinely want to see him succeed.”
Julianne McShane is a breaking news reporter for MS NOW who also covers the politics of abortion and reproductive rights. You can send her tips from a non-work device on Signal at jmcshane.19 or follow her on X or Bluesky.
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