“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans began to ’ rights and liberties. It includes judges nominated in both his first and second terms.
Trump justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett cast deciding votes in shadow docket cases in June that granted the Trump/Musk Department of Government Efficiency (DOGE) access to sensitive Social Security information on millions in Social Security Administration v, American Federal of State County and Municipal Workers. In a separate case it paused an effort to determine whether DOGE is subject to a key transparency law in US DOGE Service v CREW. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson firmly dissented.
What happened in the Social Security case?
As part of its activities, DOGE requested access from the Social Security Administration (SSA) to significant private information. Lower courts had preliminarily enjoined such access, but the 6-3 Supreme Court granted it in a shadow docket ruling with little explanation. As Justice Jackson put it in dissent, the ruling will “hand DOGE staffers the highly sensitive data on millions of Americans,” posing “grave privacy risks.” She added that the only “urgency” for the Trump administration is that “it cannot be bothered to wait for the litigation process to play out.” The case thus became part of the Court’s “shadow docket” – cases resolved in summary fashion by the Court without full briefing, opinions, or oral argument. Although lower courts will continue to review DOGE’s conduct, a former SSA official explained that during that time, DOGE operatives “will have ‘God-level’ access to Social Security numbers, earning records, bank routing numbers, mental and reproductive health records, and much more,” harming privacy rights.
What happened in the DOGE transparency case?
A watchdog group, Citizens for Responsibility and Ethics in Washington (CREW), filed a suit against DOGE, claiming that like other government agencies, DOGE should be subject to requests for its records. A lower court had ordered DOGE to turn over some documents as part of that lawsuit, but in another 6-3 shadow docket order, the Supreme Court majority stayed that order and mandated that the request to DOGE be “narrowed.” Justices Sotomayor, Kagan, and Jackson again dissented.
Both these shadow docket decisions, made possible by the three Trump justices, harm efforts to hold DOGE accountable for its actions – and the Trump administration accountable to the rule of law. They also illustrate the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.