“If the entire foundation falls out from under your house, it does no good to have a really well-insulated attic,” the judge said. “It sure would be nice if someone had our backs.” An anonymous federal judge made that comment to NBC News in a remarkable piece that published this morning.

The attic they are referring to is the U.S. Supreme Court. A Court that is increasingly viewed in some corners as having abandoned the role Article III of the Constitution assigns to it, to act as a check and balance on the executive branch. But the concerns the judges expressed were about the process the Supreme Court is using to make decisions. The reporting was not an inquiry into either the substance of the high court’s rulings or the politics behind it all.

It’s all about the shadow docket, a term you’re familiar with if you read Civil Discourse. It’s a slightly snarky term coined by legal academics to refer to the Court’s emergency docket, which is used for time-sensitive issues, like last-minute requests to stay executions in death penalty cases. The Court also hears appeals involving emergency civil relief on this docket. That means that cases where pro-democracy lawyers seek injunctions to block some of the most egregious steps this administration is taking land, with increasing frequency, on the shadow docket, and that’s where they get decided.

. . .

Apparently, it’s frustrating for judges in lower courts as well. After all, they are being called upon to apply the Supreme Court’s decisions. Shadow docket rulings are precedent that lower courts must follow. But how do you apply something when there is no explanation for why it happened? That’s the position the lower courts are in and it’s what led 12 federal judges to take the unprecedented step of speaking anonymously to an NBC reporter about what’s going on at the Supreme Court.

The reporting characterized it like this:

“Lower court judges are handed contentious cases involving the Trump administration. They painstakingly research the law to reach their rulings. When they go against Trump, administration officials and allies criticize the judges in harsh terms. The government appeals to the Supreme Court, with its 6-3 conservative majority.

And then the Supreme Court, in emergency rulings, swiftly rejects the judges’ decisions with little to no explanation.”

. . .