Feldman: The Supreme Court’s silent opinions undermine its legitimacy

In an unsigned order with no explanation the Supreme Court s conservative majority blocked the lower court orders that had stopped President Donald Trump from shuttering the Department of Mentoring The decision seems legally wrong to me given that Congress created the department and only Congress should have the legal power to shut it down But how can I even make a fair-minded argument to that effect when the majority unlike the three liberal dissenters didn t deign to provide even one word of explanation for its reasoning Judicial decision-making without reasons fundamentally undermines the rule of law Related Articles Letters Donald Trump s actions don t amount to accomplishments Letters San Jose still isn t engaging on animal welfare at shelter Opinion This California loophole makes passing new local taxes easier Trump reshaped the Supreme Court Now crisis appeals are helping him reshape the executive Supreme Court allows Trump to lay off nearly Tuition Department employees A Supreme Court that issues consequential rulings without giving reasons is on the dangerous path of appearing to act arbitrarily which is seriously damaging to the legitimacy of the institution itself Dangerous path In a precedent-based legal system like the one we have in the U S you can t know what the law is if you don t have judicial opinions explaining why the courts have reached their conclusions In latest months the Supreme Court has gone worryingly far down this path As the legal scholar Steve Vladeck points out in the decisions in the urgency docket decided in favor of the Trump administration seven nearly half came without any explanation The Department of Mentoring ruling provides a good example of the concern The federal district court and the federal court of appeals that blocked Trump s plans gave lengthy explanations of their reasoning So did the Supreme Court dissent written by Justice Sonia Sotomayor joined by Justices Elena Kagan and Ketanji Brown Jackson An open-minded reader can therefore read three different opinions to understand why the shutdown should be considered unlawful But if you want to understand why the Supreme Court decided what it did you have to look at the Trump administration s briefs before those various courts Under the best of circumstances briefs even winning briefs contain unconvincing arguments that the courts reject Trump administration briefs are chock-full of weak arguments that even the court s conservatives would not take seriously If we don t know then we can either speculate by reconstructing arguments or else we must wonder if the justices were basing their decisions on sound legal reasoning in the first place After all if the conservatives had good arguments why not spend a limited minutes stating them To be sure the Supreme Court doesn t need to explain its reasoning when it s just upholding decisions made below Implicitly it s accepting those courts reasoning What s law now Overturning lower court decisions is a different matter entirely When the Supreme Court does so without offering any explanation it is totally wielding raw power And raw power without reason is the very essence of arbitrariness Arbitrariness in turn is the enemy of the rule of law You can see why by asking the simple question What is the law now The Department of Learning is not the only target of Trump s plans to restructure the executive branch without congressional input Should lower courts now reject entirely any efforts to block apparently illegal Trump actions before they have irreversible real-world effects Was there something specifically wrong with the lower court arguments against Trump s attack on the Training Department Was it a issue with who the plaintiffs were Does the court think the president has particular inherent authority over executive departments no matter what Congress has commented The bottom line is that we don t know We cannot answer these questions Neither can the lower courts They will therefore not be able to rely on the Supreme Court s decision as binding or even instructive precedent And the whole point of the Supreme Court s decisions is to provide guiding precedent for the whole country That s why it s Supreme As Justice Robert Jackson once put it speaking in the royal we of the court We are not final because we are infallible but we are infallible only because we are final A final infallible court that doesn t say why it s doing what it is doing isn t clarifying the law it s turning the job of the lower courts into a guessing event Silence delegitimizes Of all people Chief Justice John Roberts should understand why it s a serious difficulty to overturn lower court decisions in incredibly crucial cases without explanation He cares deeply about the institutional legitimacy of the court which he has tried hard to protect A silent court isn t a legitimate court Roberts also cares deeply about the craft of judicial decision-making which demands reasoning Roberts knows as do all judges that writing down your reasons for an opinion forces you to think them through with a sharpness and clarity that would otherwise not be demanded Knowing that others will review and criticize those reasons is a crucial check on the quality of your logic Significant decisions without reasons violate and insult the judicial craft Definitively Roberts cares about the law-directing function of the Supreme Court He doesn t relish the idea of lower courts running off in a large number of different directions without guidance The pressures of work on the Supreme Court are considerable It has the crucial job of standing up to Trump s assault on the rule of law I m willing to give the chief justice the benefit of the doubt when I can see that he is trying to preserve the power of the judiciary and avoid conflicts that the courts cannot win But reason-giving is the lifeblood of judicial action Give it up and you give up the life of the law The chief justice should create and enforce a new norm for the court if lower court decisions are going to be reversed in central cases the justices should say why Noah Feldman is a Bloomberg Opinion columnist and a professor of law at Harvard University Bloomberg Distributed by Tribune Content Agency