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For years, Justice Kagan was overtly critical of the Supreme Court’s approach to emergency applications. In written dissents and public speeches, Kagan fed into the nefarious “shadow docket” narrative. She may as well have blurbed Steve Vladeck’s book. Yet, I’ve noticed over the past year or so that rhetoric from Justice Kagan has faded. Indeed, Kagan testified that she would rather “not now . . . call it the shadow docket . . . because we have done . . . a better job . . . where appropriate [of] explaining ourselves, at least to a moderate degree.” Kagan added, “we have gotten more experienced in these constant requests that are coming to us about requests for emergency relief . . . and we have issued opinions, and sometimes majority and dissenting opinions accordingly.”

Kagan was almost certainly referring to Trump v. Cook, which might be the slowest emergency docket case of all time. Remember, President Trump purported to remove Governor Lisa Cook from the Federal Reserve on August 25, 2025. Twelve days later the District Court granted a preliminary injunction. Four days after that, the D.C. Circuit denied the government’s motion to stay. The case reached the Supreme Court on September 18, 2025. It would take the Court more than 280 days to decide the case in its “interim” posture, with more than 80 pages of majority, concurring, and dissenting opinions.

Justice Alito’s dissent laid out the glacial chronology.

The President then applied for a stay from this Court. When that application arrived here, this litigation was just 21 days old. There had been only two rounds of abbreviated briefing below and no meaningful development of a factual record. Indeed, the record does not even contain copies of Cook’s allegedly fraudulent mortgage applications. Of course, parties may appropriately seek (and courts may appropriately grant) stays early in a litigation. No court, including this Court, should sit on its hands when interim relief is appropriate. But this does not mean that the Court must reach out to opine on each issue that could conceivably arise in a case’s future. Here, the incipiency of this case and the complexity of the issues that it presents counseled in favor of a light touch by this Court, regardless of whether we granted or denied the application. To that end, the Court should have resolved the President’s application shortly after we received it. And in doing so, we should have focused on the few issues that the courts addressed below. If a majority had desired, we could have issued a statement explaining our decision. That is exactly how we have handled nearly all our stay applications in recent years.

Had the Court denied the stay in September or October of 2025, the lower courts could have proceeded to decide the case on the merits, and presented the Supreme Court with a regular appeal. But the Court (and by Court, I mean the Chief Justice) chose a different path. Alito explains further:

Although the panel performed admirably given the four days that it had to decide the President’s stay motion, nobody can doubt that the panel would have produced more comprehensive opinions if it had even a fraction of the 280-plus days that this Court has spent with the case. Either way, this Court could have reentered the fray when we inevitably granted certiorari. Instead, the Court departed from its normal practice and “deferred” ruling on this application, bringing proceedings in the lower courts to a 9-month standstill. 606 U. S. 1062 (2025). We then ordered the parties to submit more briefing than they had filed at any other point in this litigation. In January, we held oral argument, marking just the second in-court proceeding in this entire suit. The Court now issues a full-length opinion that purports to resolve many complicated and novel legal questions on an underdeveloped record while ignoring lurking jurisdictional issues.”Either out of humility or out of self-respect (one or the other), the Court should decline to answer” these “incredibly difficult” questions in this case’s current posture. PGA TOUR, Inc. v. Martin, 532 U. S. 661, 700 (2001) (Scalia, J., dissenting).

Moreover, the Court reached out to decide several significant constitutional questions that were not necessary to decide. Is the Federal Reserve’s so-called “independence” consistent with the separation of powers? Do the federal courts even have jurisdiction to review the President’s termination of a Governor? Did Cook even have a “cause of action” to challenge her removal? Justice Barrett raises these, and other questions in her concurrence. But the Supreme Court was content to decide a landmark case on its “emergency” docket, leapfrogging over all prudence. This unusual posture was sure to placate Justice Kagan and the Court’s critics, but is at odds with the Chief’s self-professed modus operandi.

Indeed, something seems to have happened behind-the-scenes in this case. In most cases, the Chief Justice barely acknowledges the dissent, and offers sparse responses, if that. In Barbara, the dissents were more than five times as long as the majority. Roberts didn’t care to respond because he had five votes.

Yet in Cook, Chief Justice Roberts responds nearly point-by-point to Justice Thomas. I think this was part of an effort to justify the Court’s decision to reach the constitutional question. One would expect Roberts to simply say in a footnote “We need not reach the status of the constitutionality of the Federal Reserve’s for-cause protections…” But no such luck. The Federal Reserve cannot be kept in “limbo” so let’s respond to the brash Justice Thomas.

Then there is this passage where Roberts which responds directly to his colleagues:

How much to say on our interim docket—and how much to say in response to a dissent—is not reducible to any mechanical formula; it is ultimately a matter of prudence, upon which reasonable minds can (and often do) disagree. See Mirabelli v. Bonta, 607 U. S. 492, 501 (2026) (BARRETT, J., concurring) (“Interim applications routinely require the Court to balance the lock-in risk of saying too much against the transparency cost of saying too little”); compare Trump v. Illinois, 607 U. S. ___ (2025), with id., at ___ (KAVANAUGH, J., concurring in judgment) (slip op., at 6), and id., at ___ (GORSUCH, J., dissenting) (slip op. at 2). In this extraordinary case, we have had the benefit of not only amici and oral argument but months of internal consultation and deliberation. We see no reason to leave the public in limbo, or to sow doubt as to the status of one of our Nation’s (and theworld’s) most important financial institutions. Althoughwe appreciate that others may see matters differently, wewould not so quickly unsettle this “special arrangement sanctioned by history.” Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd., 601 U. S. 416, 467, n. 16 (2024) (ALITO, J., dissenting).

First, Roberts faults Barrett for inconsistency. In Mirabelli (decided in March 2026), Barrett favored deciding the merits, even at the risk of lock-in. Indeed, the Chief Justice joined that opinion. I was surprised Roberts joined that concurrence, as he usually says nothing at all on emergency docket cases. But now that join comes into focus. Roberts joined Barrett’s concurrence, even though Barrett chose not to join Roberts in Cook. Roberts may have even joined Barrett to nudge her into flipping in Cook. Roberts almost certainly wrote the narrow per curiam in Mirabelli. Why do more?

In Mirabelli, Barrett chose to reach the merits, but in Cook, she did not. Again, when Mirabelli was decided, Barrett had to have known what Roberts would say in Cook. I have this sinking feeling that Barrett’s vote flipped in Cook. Maybe she was troubled so much by the lack of a cause of action that she just couldn’t go along with the majority. Maybe she really liked Aditya Bamzai and Aaaron Nielson’s article, and did not think the Bank of the United States was a valid precedent. Something happened here.

Second, Roberts draws a contrast between Justice Kavanaugh’s concurrence in Trump v. Illinois with Justice Gorsuch’s dissent. In that case, Justice Kavanaugh would have ordered additional briefing and oral argument–exactly what was done in Cook. By contrast, in Illinois, Justice Gorsuch would not have decide the merits question with limited briefing. Here, I think Roberts was giving credence to Kavanaugh’s concerns.

Third, the Chief Justice appears to break the fourth wall. He expressly references “months of internal consultation and deliberation.” What is going on here? It goes without saying that the Justices will always consult and deliberate. But “months”? Again, the application was filed in September, the following month the Court set the case for oral argument, the case was argued in January, and decided on the last day of June. I get this feeling that deliberations continued well after the case was argued, maybe through the end of the term. Justice Kavanaugh and the Chief were locked in from the outset. This sentence provides some more proof that Justice Barrett may have vacillated in Cook.

There is much more that I will say about Cook in another piece, contrast the case with Slaughter. But here I’ll close on a note about Roberts.

I appreciate Richard Re’s attempts to reconcile the Chief Justice’s votes in Cook and Barbara, and decisions over the course of two decades. But the levels of explanation are getting tough to follow. He is an “institutionalist”; he is an “institutionalist” who practices the doctrine of “one last chance”; he is an institutionalist who practices the doctrine of “one last chance” but still “moderates from the front”; he is an institutionalist who practices the doctrine of “one last chance” but still “moderates from the front” except when “extremism in defense of stability is no vice.”

The ancients who favored the geocentric model of the universe kept confronting evidence that didn’t conflicted with the model. So they started drawing “epicycles” to explain away the retrograde motion of certain planets. Over time, scientists recognized that the geocentric model was wrong, and the solar system revolved around the sun.

Our legal order has revolved around the Chief Justice for so long that it is tempting to offer a unifying theorem. But the most likely theory is the simplest. Robert is charge–not because he is the smartest judge or puts forward the most compelling theories. Rather, just like when he was an advocate, he found a way to count to five when it mattered. Or more precisely, to count to four–he has his own vote in hand.

The conclusion I reached some time ago is that Roberts is entirely situational. He decides each case on its own terms based on the political climate of the day. Roberts does as much as he thinks he can get away with, no more and no less. In one case, minimalism. In another case, maximalism. Rules of prudence are thrown to the wind when the cause is just. And the Chief Justice uses whatever magic is needed to get there.

Roberts is not an institutionalist. He is an illusionist. But like all other illusionists, once he is off the stage, he will be quickly forgotten. Chief Justice Marshall’s decisions are still revered. Will anyone even remember the sorts of political compromises the Roberts Court navigated? Why did he vote to save Obamacare? Why did he vote to save Roe? I can barely remember the situations from the first Trump administration. Roberts’s opinions may as well be written with disappearing ink.

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The Democratic Socialists of America (DSA) are having a moment: Candidates affiliated with this group are winning Democratic primaries all over the country—and that’s bad. Very, very bad. Why? Well, because their ideas for how to run the country are wrong, and dangerous, and in many cases authoritarian. We know that because we can read their plans and listen to their speeches.

Now, I know what you’re thinking: Don’t Republicans call everybody who disagrees with President Donald Trump a socialist? Sure, that label as an insult has been overused before. But these people self-describe as socialists and communists—and they revere figures and governments from history that engaged in actual authoritarian communism.

Take Hasan Piker, a popular far-left commentator associated with the DSA. He recently spoke at a gathering of College Democrats and explained his plan to drive all the nonsocialists out of the Democratic Party:

Dressed like Mao and talking about how much he hates the majority of Democrats as an invited guest of @CollegeDems. Our party having a normal one. pic.twitter.com/y1QDuF7I9Q

— Shannon Watts (@shannonrwatts) July 19, 2026

You might have some questions about that, including, uh, what was he wearing? Well, it turns out he just so happened to dress in the uniform of one of his favorite great men of history: Chinese dictator Mao Zedong.

Mao did, in fact, change the world—by making it much worse. Under Mao’s communist economic policies known as the Great Leap Forward, tens of millions of people starved to death in China. He also implemented widespread political repression and censorship, and encouraged state violence against dissenters. Several million more people died as a result of his Cultural Revolution, which was Mao’s effort to maintain power despite the complete failure of his economic policies.

China’s situation only began to improve following Mao’s death in 1976, when his successors moved away from rigid central planning and allowed free markets to lift the people out of poverty.

Now, you might be thinking, Piker is just one random guy. Surely the DSA doesn’t want to implement Maoist authoritarianism. Well, read its program: It sounds pretty Maoist to me.

According to official DSA materials, it would collectivize food, education, medicine, energy, and transportation: These would all be things the government made available rather than the market. The problem with that is that governments are bad at providing such services cheaply and efficiently. When private, profit-seeking firms compete with one another to offer you stuff at the best price, it works a lot better.

The DSA goes on to say that in its socialist utopia, you’d be free to spend your day however you want, and you’d never have to work if you don’t feel like it. But that obviously doesn’t make any sense. Somebody has to work to provide all those supposedly free things: grow the food, drive the transportation, build the power plants, offer the medical services. Under capitalism, you perform those tasks in exchange for money that you use to buy what you need. But under every actually existing socialist government in history, including Soviet Russia and Maoist China, the government ends up having to force people to work, since they don’t have profits to motivate them, and you end up with both shortages and repression.

So let’s not ignore the unworkable, radical nature of the DSA’s agenda, which calls for scrapping the entire U.S. Constitution. It writes: “Our enemies are not just individual bosses, but the entire global system of capital.”

That’s right: It is declaring war on a system that has lifted billions of people out of poverty over the course of the last century.

But just because they’re wrong about everything doesn’t mean they’re going to be easy to beat. Democrats are clearly furious with the leadership of their party for failing to stop Trump, and Democratic primary voters are lashing out at incumbents and instead picking the most left-leaning person in the race—even someone like Darializa Avila Chevalier, who has tweeted in support of communism, and yet is likely to be the next congresswoman from New York.

That has some more reasonable folks in the party worried. Van Jones recently sounded the alarm on CNN:

This weekend I shared a post voicing my concerns about the far left. The response has been overwhelming. Leaders in both parties called to tell me the same thing: this stuff has gone too far.

To be clear: I'm a progressive Democrat. My whole life, I've wanted to see a youth… pic.twitter.com/RZXKQw5DSB

— Van Jones (@VanJones68) July 21, 2026

Saying some of these people evince support for literal terrorists is no slur. Kyle Kulinski, another far-left commentator like Piker, recently appeared on a livestream and expressed his fears that Hamas, Hezbollah, and the Houthis were going to lose the Iranian government as a source of funding.

Now, I’m mostly against the current U.S. war on Iran because I think it’s a waste of our tax dollars and unlikely to improve things in the Middle East, but that doesn’t mean I’m going to be shedding any tears for Hamas, Hezbollah, and the Houthis, which are terrorist groups that murder civilians. Kulinski feels differently, obviously. I wonder how many of his DSA friends agreed with him? Because you know who else appeared on that stream? Avila Chevalier, Michigan Senate candidate Abdul El-Sayed, Alexandria Ocasio-Cortez’s former chief of staff, Saikat Chakrabarti, and possible 2028 presidential candidate Rep. Ro Khanna (D–Calif.).

The bottom line is this: The DSA is about to take the entire Democratic Party on one wild ride. And while it’s tempting to simply point and laugh at the idiot in the Mao uniform, if Democrats want to keep this tide at bay, they’re going to have to do a little bit more than absolutely nothing about it.

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On Tuesday, the Pennsylvania Supreme Court unanimously ruled that warrantless searches of land marked as private violate that state’s constitution. The seven justices agreed that the “open fields” doctrine, a sweeping exception to the Fourth Amendment that the U.S. Supreme Court first announced in 1924, does not apply to the Pennsylvania Constitution’s privacy protections.

“The Pennsylvania Supreme Court affirmed that private land is not public property,” says Joshua Windham, a senior attorney at the Institute for Justice, which represented two hunting clubs that objected to warrantless surveillance of their land by the Pennsylvania Game Commission (PGC). “It’s yours, and that means you get to decide who enters it.”

The Punxsutawney Hunting Club and the Pitch Pine Hunting Club own land in Clearfield County: 4,400 acres and 1,100 acres, respectively. The properties include houses where members can stay overnight or longer. Although both clubs value their members’ privacy and have marked their land with signs, fences, purple paint, and locked entrance gates, PGC officers have never treated those indicators as legally significant.

Since 2013, Warden Mark Gritzer and other PGC officers “have entered the Hunting Clubs’ land without consent, a warrant, or probable cause at least 15 to 22 times to look for evidence of hunting offenses,” Justice Kevin Brobson notes in Punxsutawney Hunting Club v. Pennsylvania Game Commission. “Warden Gritzer even placed a trail camera on Punxsutawney’s property in an attempt to develop probable cause for charges of illegal elk feeding. That camera remained on Punxsutawney’s property for 78 days.”

Those intrusions were authorized by two provisions of the Pennsylvania Game and Wildlife Code. Section 303(c) allows PGC employees to “go upon or enter any property, posted or otherwise, outside of buildings” without consent, probable cause, or a warrant. Section 901(a)(2) similarly says a PGC officer has the power to “go upon any land or water outside of buildings, except curtilage, posted or otherwise, in the performance of [his] duty.”

Those provisions, the hunting clubs argued, violate Article I, Section 8 of the Pennsylvania Constitution, which is similar to the Fourth Amendment but had previously been read as providing more protection for privacy. Like the Fourth Amendment, Article I, Section 8 prohibits “unreasonable searches and seizures.” But it differs from the Fourth Amendment in explicitly protecting “possessions” (as opposed to “effects”), and the Pennsylvania Supreme Court deemed that detail significant, concluding that the original understanding of “possessions” included land.

In reaching that conclusion, the court overturned its 2007 ruling in Commonwealth v. Russo, which held that the “open fields” doctrine limits the scope of Article I, Section 8. The U.S. Supreme Court established that doctrine in the 1924 case Hester v. United States, which involved a warrantless search that had resulted in a South Carolina moonshiner’s arrest and conviction.

“The special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers and effects,’ is not extended to the open fields,” Justice Oliver Wendell Holmes Jr. wrote for a unanimous Court. “The distinction between the latter and the house is as old as the common law.”

Holmes was wrong about that. As Institute for Justice attorneys Robert Frommer and Anthony Sanders noted in a 2017 Supreme Court brief, Holmes misconstrued a discussion of burglary in William Blackstone’s Commentaries on the Laws of England, erroneously thinking it justified the supposedly longstanding distinction he perceived. But despite the shaky basis for the “open fields” doctrine, the Court reaffirmed it in the 1984 case Oliver v. United States, which involved a marijuana farm discovered by Kentucky state police.

Seventeen years earlier in Katz v. United States, the Court had announced a new Fourth Amendment test, saying the ban on unreasonable searches applies when people have “a reasonable expectation of privacy.” But in Oliver, the Court deemed the “open fields” exception consistent with the Katz test.

“In the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment,” Justice Lewis F. Powell Jr. wrote in the majority opinion. Although the marijuana growers “erected fences and ‘No Trespassing’ signs around the property,” the Court rejected “the suggestion that steps taken to protect privacy establish that expectations of privacy in an open field are legitimate.”

The implication was that “open fields” need not actually be open. Even when private property is fenced and marked with “No Trespassing” signs, the Court said, “no expectation of privacy legitimately attaches to open fields.”

The Pennsylvania Supreme Court applied the same logic in Russo, which involved a warrantless search of private land that turned up evidence of illegal bear hunting. That decision was mistaken, Brobson says, because it disregarded evidence that Article I, Section 8 extends beyond the “curtilage,” the area immediately surrounding a home.

Judging from contemporaneous dictionary definitions, Founding-era statutes, and early decisions by the Pennsylvania Supreme Court, Brobson explains, the “possessions” protected by that constitutional provision include land. That conclusion, he says, is reinforced by the definition of trespassing under English common law and Pennsylvania statutes.

Brobson also notes that Article I, Section 1 of the Pennsylvania Constitution describes “acquiring, possessing and protecting property” as an “inherent and indefeasible” right. “It is axiomatic that, by granting the people the right to possess property in Article I, Section 1, the framers intended for all forms of property, including land, to constitute a ‘possession’ for purposes of Article I, Section 8,” he writes.

Based on these considerations, Brobson concludes that “Russo was wrongly decided” and that Sections 303(c) and 901(a)(2) of the Pennsylvania Game and Wildlife Code “violate Article I, Section 8 of the Pennsylvania Constitution,” which “provides Pennsylvania citizens with greater protection than the Fourth Amendment to the United States Constitution as it relates to the open fields of any landowner” who “has demonstrated a reasonable expectation of privacy by taking sufficient steps to exclude intruders therefrom.” That means PGC employees and other law enforcement officers “must obtain a warrant based upon probable cause or satisfy one of the recognized exceptions to the warrant requirement before entering such property.”

With this decision, Pennsylvania joins six other states where courts have rejected the distinction that Holmes invented in 1924. “Courts in both Vermont and Tennessee have rejected warrantless searches of land by game wardens,” Brobson notes. “The high courts from four other states—Washington, Oregon, New York, and Montana—all of which have adopted heightened privacy protections under their respective state constitutions, have similarly rejected the open fields doctrine.”

Windham underlines the implications of that rejection. “If government officials want to invade your posted land without your consent and spy on you, they need to get a warrant,” he says. “By restoring that foundational protection, the court bolstered the property and privacy rights of millions of Pennsylvanians—and sent a warning to officials across the country who still believe they can invade private land at will: Watch your step.”

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