[rayiner]

The rise of the “shadow docket” is driven by changing behavior of litigants and the district courts. The main reason cases get on the shadow docket is litigants seeking, and district courts granting, TROs and preliminary injunctions against major executive or legislative actions without trials or often even full briefing. It can’t possibly be true that a district court can block a major action within days but the Supreme Court can’t correct it until years later through the regular appeal and certiorari process.

[wtallis]

> Live by the sword, die by the sword.

I'm not seeing how that applies. There's a clear asymmetry between lower courts issuing temporary restraining orders and preliminary injunctions on the basis of well-established precedent, vs. the Supreme Court overturning those with little or no explanation or justification.

When the executive or legislative action is "major", that would seem to make it more reasonable that the lower courts put the changes on hold pending a trial. Drastic changes should be implemented only with strong justification, and when a drastic change seems to be very clearly in violation of existing law, it is in dire need of checks and balances with teeth.

It certainly isn't the Supreme Court's job to help the executive pull off major changes more quickly.

[rayiner]

The complaint isn’t about the “asymmetry,” it’s about the symmetry. A hastily issued district court order should be (and is) subject to being overturned by the higher courts just as quickly as it was issued.

The precedent may be binding, but injunctions—unlike final judgments—are discretionary relief. The district court doesn’t have to grant discretionary injunctive relief based on precedents that are in doubt, and if they do, it’s perfectly fine for the Supreme Court to overrule that.

> Drastic changes should be implemented only with strong justification

That’s exactly backwards. The elected branches don’t have a “mother may I” relationship with the courts. That’s not the design, and that wasn’t the practice for most of the history of the republic. Injunctions are by definition “extraordinary relief” reserved for the most unusual cases.

Go read Marbury v. Madison again. The Supreme Court bent over backwards to avoid having to enjoin the Secretary of State to perform what it concluded was a “ministerial,” non-discretionary action (delivering a letter that had already been signed by the outgoing President). Most injunctions against executive action in the recent decades would have been considered unfathomable overreach by the founding generation.

[wtallis]

> The elected branches don’t have a “mother may I” relationship with the courts.

That "mother may I" phrase implies asking for pre-approval for routine stuff, which obviously isn't what's at issue here.

> Injunctions are by definition “extraordinary relief” reserved for the most unusual cases.

The unusual and extraordinary may have become quite common of late, but that doesn't mean it starts being wrong for a lower court to intervene when the president tries to fire an FTC Commissioner in clear violation of precedent about firing FTC Commissioners. A president ignoring the law is definitely sufficiently "extraordinary" to justify temporary injunctions, and the fact that he's doing it a lot only reinforces the need for the checks and balances.

> A hastily issued district court order should be (and is) subject to being overturned by the higher courts just as quickly as it was issued.

Don't be ridiculous. The entire concept of temporary injunctions is built on the fact that many situations need to be slowed down and the potential harm prevented until serious legal questions can be properly considered. The lower courts aren't being "hasty" in the sense that they're issuing these orders on a whim with too little justification, they're being hasty in the sense of acting with commensurate speed to the executive actions of questionable legality that the courts need to keep in check. But the Supreme Court shadow docket decisions do come across as insufficiently thought out.

> The district court doesn’t have to grant discretionary injunctive relief based on precedents that are in doubt,

A lot of these precedents really aren't in doubt, except to the extent that it's clear the current Supreme Court doesn't like them. But until such time as the Supreme Court furnishes the proper decision overturning existing case law (not just hinting at a willingness to do so in the future), it's reasonable for lower courts to continue applying that case law when it is extremely obviously applicable.

[rayiner]

> That "mother may I" phrase implies asking for pre-approval for routine stuff, which obviously isn't what's at issue here.

There is no relevant “routine” versus “non-routine” distinction in either the constitution or the law. Obviously, the folks who had just overthrown their government and created a new one contemplated elected branches that could make dramatic changes!

> A president ignoring the law is definitely sufficiently "extraordinary" to justify temporary injunctions, and the fact that he's doing it a lot only reinforces the need for the checks and balances.

It’s not, actually. The primary check on the elected branches is elections, not lawsuits. The courts exist primarily to vindicate personal rights, not to manage national policy. The framers never even envisioned that courts could enjoin the President for discretionary acts. Even Marbury rejects that notion.

Here, the personal right—someone’s employment as an FTC Commissioner—is the tail that’s wagging the dog. It’s not “extraordinary” because losing your job is such a grievous injury. It’s just a proxy for the government policies the FTC Commissioner has the power to execute. So the courts are being invoked in a battle over policy, which is exactly where the power of the courts is the weakest (by design).