[Josh Blackman] The Shadow Docket on Coney Island

[What will Justice Barrett do next?]

Last month, the Supreme Court by a 5-4 vote refused to block a lower-court order requiring nearly $2 billion in funding through USAID. Today, in Department of Education v. California, the Supreme Court by a 5-4 vote blocked a lower court order requiring about $65 million in funding through the Department of Education. Can these cases be distinguished? Maybe, but the cases seem pretty similar. The rationales the per curiam opinion cites would seem to apply with equal force to the USAID case. If anything, the executive branch should have a freer hand to spend money on foreign policy rather than on domestic matters.

The only member of the Court in the majority for both cases is Justice Amy Coney Barrett. Given this apparent flip-flop, one would expect that Justice Jackson's dissent would call out the inconsistency. But the dissenter holds her fire. This is probably a prudent move, so as not to alienate Justice Barrett. If I had to guess, this Friday-afternoon opinion will be a prelude to Justice Barrett handing President Trump some serious losses. This is not a sea change around Coney Island. The minimal amount of funding for the teachers will quickly be forgotten.

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