"it is the Judiciary’s duty to check that lawlessness, not expedite it."

 On Monday, the Supreme Court on a 6-3 vote allowed the Trump administration to move ahead with the massive Department of Education layoffs while the cases challenging those layoffs proceed. Because it was taken on the "shadow docket," emergency orders that are issued unsigned and without the decision having an argument in support. Chris Geidner notes the hypocrisy of the Roberts court in making this call. 

As Quinta Jurecic writes in The Atlantic:

This silence is damaging, both to the legitimacy of the Court and to the rule of law. The judiciary is a branch of government that is meant to provide reasons for its actions—to explain, both to litigants and to the public, why judges have done what they have done. This is part of what distinguishes law from the raw exercise of power, and what anchors the courts as a component of a democratic system rather than setting them apart as unaccountable sages. With a written opinion, people can evaluate the justices’ reasoning for themselves. Without it, they are left to puzzle over the Court’s thinking like ancients struggling to decipher the wrath of gods in the scattering of entrails.

What we were not left in any doubt of was the opinion of the minority, written by Justice Sotomayor, a quote from which is the title of this blog post. Sotormayor reviews the history of the federal government's involvement in public education; the important role the Department of Education plays in education; in addition to reviewing the case. She summarizes the argument before them as: 

Before this Court, the Government does not defend the lawfulness of its actions.  Rather, in a now-familiar move, it presents a grab bag of jurisdictional and remedial arguments to support its bid for emergency relief.  None justifies this Court’s intervention. 

She closes by: 

The President must take care that the laws are faithfully executed, not set out to dismantle them. That basic rule undergirds our Constitution’s separation of powers.  Yet today, the majority rewards clear defiance of that core principle with emergency relief.  Because I cannot condone such abuse of our equitable authority, I respectfully dissent. 

 It is worth noting that this is a stay to an injunction that stopped the layoffs (again) while the cases proceed. The point of the injunction, of course, was layoffs were in fact destroying the Department even as it wasn't being destroyed by an official process. 

As I've said from the beginning (of the prior Trump administration!), the concern here is not only for money, though that tends to capture the headlines. It is also about the services that are provided by the federal department, of which I would highlight the protection of civil rights. We may well be about to find out what happens when every state is left to determine for itself what it is willing to do if not required to.