The Supine Court
The Supreme Court was designed to be the guardian of law, the neutral voice that ensures statutes and constitutional commands are obeyed. Instead, it has chosen to lie down. By treating almost every clash between the political branches as a "political question," the Court has reduced law to politics, and in doing so, it has empowered the executive at the expense of Congress.
The result is not stability but decay. When Congress cannot enforce its own laws, when the judiciary refuses to clarify the boundaries of constitutional text, power accumulates in the executive and constitutional powers become weaponized. The Supine Court has abdicated its duty to say what the law is, and its silence has let others decide.
What Judicial Duty Requires
The Constitution itself defines the scope of judicial power. Article III vests that power in the courts and extends it to “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” That language means the judiciary must hear and decide disputes about whether the Constitution and the laws have been obeyed. Judicial power is therefore nothing less than the authority—and the duty—to determine in the concrete cases before it whether law governs and what it means.
This was made explicit in one of the Court’s first great rulings: Marbury v. Madison (1803). There, Chief Justice Marshall declared: “It is emphatically the province and duty of the judicial department to say what the law is.”
To truly follow what the Constitution and Marbury laid out, it would seem obvious that the Court must distinguish between questions of law and politics.
When the question is what the law is—has the statute been obeyed, has the Constitution been followed—the Court must answer. When the question is what the law should be—how much to spend, whether to go to war—that belongs to politics.
Instead of honoring that bright line, the Court has blurred it. In the name of "judicial modesty," it has refused to act in cases where the law was plainly flouted. Worse, the Court has at times ruled in ways that disregard the statutes or constitutional text before it—reading powers or limitations into words that must be stretched beyond recognition to support the outcome. Whether through silence that leaves constitutional boundaries undefined, or through decisions that rewrite those boundaries to fit preferred results, the Court abandons its duty to faithfully interpret the law as written. In both modes, it has not preserved neutrality—it has chosen sides.
The Illusion of Modesty
The Court insists that many interbranch disputes are mere political questions. Yet this evasion distorts the very nature of judicial duty. If Congress sues because the executive branch refuses to follow a statute as written, that is not politics—it is law. To deny standing there is to erase the legislature’s most basic role.
The reasoning that Congress can “fight back” with oversight, appropriations, or even impeachment does not preserve balance; it concedes that the primary power of enacting binding law may be illegally diminished so long as Congress has blunter weapons left. That is akin to saying that someone being robbed cannot sue because they can always defend themselves with a baseball bat. Why should anyone—person or institution—suffer lawbreaking with impunity, their only recourse being tools of warfare?
The idea that such injuries can be “contested through politics” is a mask for the Court's refusal to act. When the claim is that law has not been followed, the judiciary alone has the prerogative and duty to adjudicate. Political questions are easy to spot—budgetary priorities, declarations of war, negotiations of policy. But disobedience of law is not politics; it is lawlessness. The Court’s refusal to draw that line clearly has collapsed the distinction and caused it to abdicate its constitutional duties. By ducking when law is at stake, the Court does not avoid politics—it ensures that all becomes politics, including itself.
This abdication comes at dire cost to private citizens and to the judiciary itself. The Court has argued that to grant standing to Congress or the executive would open the floodgates for frivolous lawsuits. Yet by denying interbranch standing, the Court forces constitutional violations to filter through private citizens who must wait until they suffer concrete injury. This means the same legal question—whether a statute was lawfully enacted, whether an executive action exceeded statutory authority—must be litigated dozens or hundreds of times by individual plaintiffs, each establishing their own standing. It creates a parade of proxy lawsuits where one direct suit between the branches could have resolved the legal question cleanly. And it delays resolution for years, during which the allegedly unlawful conduct continues and harm to private citizens remains ongoing. If the executive branch could sue Congress directly to resolve contradictory statutory commands—or Congress could sue to enforce its laws—a single case could establish what the law requires, binding all parties immediately. Instead, we get prolonged uncertainty, wasted judicial resources, and continued lawlessness while citizens scramble to find someone with standing to vindicate constitutional boundaries that should never have been in doubt.
The irony is stark: in seeking to avoid politics, the Court has politicized itself. In seeking stability, it has undermined law. In not upholding the constitution, it is harming the very citizens and government whose rights the constitution was written to enshrine. In lying supine, it has surrendered the ground it was created to defend.
Case Studies in Supineness
Goldwater v. Carter (1979) – President Carter terminated the Taiwan defense treaty without Senate consent. The Court declared the issue a political question and refused to rule. Yet the Constitution explicitly grants the Senate a role in making treaties—whether that role extends to termination is a question of constitutional interpretation. By ducking, the Court handed the President unilateral power to answer that question himself.
Nixon v. United States (1993) – A federal judge impeached by the House and convicted by the Senate challenged the Senate's use of a committee for fact-finding rather than conducting all proceedings before the full Senate. The Court dismissed the case as a political question. Yet the Constitution requires the Senate to 'try' impeachments. Whether delegating fact-finding constitutes a 'trial' is a question of constitutional meaning. By refusing to say, the Court gave the Senate blank-check authority to define 'trial' however it wishes.
Committee on the Judiciary v. McGahn (2019–2020) – The House subpoenaed former White House Counsel Don McGahn to testify about events detailed in the Mueller Report, including President Trump's attempts to have Mueller removed. McGahn refused, claiming "absolute testimonial immunity" for senior presidential advisors. Years of litigation followed over whether the House had standing to sue to enforce the subpoena. By the time appeals ended, the Congress that issued the subpoena had expired, and much of the urgency of the testimony was lost. Delay became defeat. The Court's silence allowed stonewalling to triumph.
When Restraint Enables Dysfunction
A further illustration is House v. Azar (2016). At first glance, the case appears straightforward: the House sued to block President Obama from making payments to insurers under the ACA without Congressional appropriation for those payments. A lower court recognized the House’s standing, but the case dragged through appeals until policy changes mooted it. Yet examined carefully, the case reveals how judicial abdication enables constitutional gamesmanship.
Congress had passed the ACA, which mandated cost-sharing reduction payments to insurers—a non-discretionary duty using "shall" language. That law remained on the books. Later, a different Congress claimed these payments lacked appropriation.
In a functional system, when Congress enacts a law commanding the executive to spend money—using mandatory language like "shall pay"—that command itself constitutes an appropriation. It must. How could it be otherwise? If Congress declares by statute "the Secretary shall make payments of X dollars to Y recipients," it has both ordered the spending and authorized the drawing of funds from the Treasury to accomplish it. The two cannot be separated without rendering the law meaningless.
In a sane system, a later Congress cannot revoke the appropriation inherent in mandatory spending language except by amending or repealing the underlying statute. It cannot maintain the command while withholding the means. That is not legislative power—it is legislative sabotage of the executive's constitutional duty to faithfully execute the laws. If Congress wants to stop the payments, it must repeal or amend the ACA, not simply refuse to fund a law it lacks the votes to change. Yet the Court's silence permits exactly this: warfare in place of law, contradiction as strategy, constitutional obligations rendered unenforceable.
The correct plaintiff here was the executive, not Congress. The Obama administration should have had standing to countersue: "When you enacted this statute with mandatory payment language, you appropriated these funds. You cannot now claim we lack authority to spend what you've already commanded us to spend, without repealing the law itself."
The Court's refusal to address this is abdication masquerading as restraint. The question—whether Congress's mandatory spending command itself constitutes appropriation, or whether a separate appropriation is required—is a question of law that Marbury requires courts to answer. By refusing, the Court enabled Congress to wage political warfare through legal contradiction, leaving the executive unable to fulfill its constitutional obligation to faithfully execute the laws Congress itself has passed.
When the System Collapses
Here in 2025, the pattern of abdication has reached its logical endpoint. A Court that refuses to clearly adjudicate law through proper process now governs through the shadow docket—emergency orders issued without briefing, oral argument, or signed opinions. This is not restraint. It is power without accountability.
For years, the Court has been using the shadow docket to mask ideological action as reasoned determination. In Whole Woman's Health v. Jackson (2021), Texas designed a law explicitly to evade judicial review by delegating all enforcement to private citizens. When challengers sought emergency relief, the Court refused to act, hiding behind the very procedural complexity the law was designed to create. In Biden v. Texas (2021), the Court ordered the administration to reinstate an immigration policy the executive believed unlawful—via unsigned, six-paragraph order with no oral argument. In Alabama Association of Realtors v. HHS (2021), the Court blocked the CDC's eviction moratorium in an unsigned order, making major policy without reasoned explanation.
The trend has accelerated dramatically in 2025. Trump's administration has filed twenty-three emergency requests in the first nine months of the year—the same number the Biden administration filed in four years—and the Court has sided with the administration in 84 percent of shadow docket cases.
In Department of State v. AIDS Vaccine Advocacy Coalition (September 2025), the Court allowed Trump to withhold $4 billion that Congress explicitly appropriated for foreign aid, claiming the spending wasn't "aligned with the foreign policy of the president." This is the inverse of Azar: where Congress tried to nullify its own appropriation through inaction, here the executive nullifies Congress's appropriation through decree—and the Court permits it via unsigned order. The result is a de facto line-item veto, the very power the Court once ruled unconstitutional almost three decades ago. The Court has overturned lower court rulings with such frequency that ten federal judges—including Trump appointees—gave rare public interviews condemning it for undermining the judiciary itself. The Court is no longer simply refusing to say what the law is. It is claiming both legislative power—by allowing appropriations to be nullified—and executive power—by directing agencies beyond statutory command.
These are not isolated incidents, but are part of an astonishingly long list of important policy questions addressed by the Court while hiding behind its shadow docket. They represent governance by the judiciary through emergency fiat—precedent without process. When the Court refuses to say what the law is through transparent proceedings, it does not preserve neutrality—it creates a vacuum, then fills it with untethered discretion.
The result is worse than abdication. By making policy through unsigned orders rather than interpreting law, the Court claims legislative power. By directing executive action beyond statutory command, it claims executive power. The Court has become both lawmaker and enforcer—precisely what separation of powers forbids. This is not simply judicial overreach. It is judicial insurrection against the constitutional structure itself.
Rise or Fall
The Supreme Court cannot preserve stability by silence. Each refusal to act is itself a choice, and each choice shifts the balance of power. If law is not distinguished from politics, then law becomes politics—and the Court becomes political by default.
True modesty requires clarity: hear cases about lawfulness, dismiss cases about policy. Anything else is abdication. The Court was meant to stand as guardian. Instead, it lies supine. The Supine Court rests, while the Constitution is stolen from everyone.
