Summer recess just isn’t the same for the Supreme Court as it once was. Two emergency-docket decisions in two days — a sequel and a coming attraction — provide a further preview of full-dress showdowns coming soon.

Yesterday, in Trump v. Boyle, the Court, in its now familiar 6–3 configuration, stayed a lower court injunction, allowing Donald Trump to fire members of the Consumer Product Safety Commission (CPSC) and keep them out of office while the courts determine the legality of that order. If that sounds familiar, it’s because the case is essentially a replay of Trump v. Wilcox, a stay order in late May that allowed Trump to remove a member of the National Labor Relations Board (NLRB) and a member of the Merit Systems Protection Board (MSPB) while their lawsuits challenging the removals were pending. All of these removals present essentially the same legal question: whether the Court will overrule Humphrey’s Executor v. United States and allow presidents unfettered removal power over the governing boards of “independent” executive agencies even when Congress has attempted to restrict such removals. As in Wilcox, Justice Elena Kagan dissented for the three liberals. If Boyle breaks no new ground, it matters as a “yes, we mean it” order, signaling that any similar injunctions will be similarly stayed.

Justice Brett Kavanaugh noted, in a concurrence, explained his thinking:

When an emergency application turns on whether this Court will narrow or overrule a precedent, and there is at least a fair prospect (not certainty, but at least some reasonable prospect) that we will do so, the better practice often may be to both grant a stay and grant certiorari before judgment. In those unusual circumstances, if we grant a stay but do not also grant certiorari before judgment, we may leave the lower courts and affected parties with extended uncertainty and confusion about the status of the precedent in question. Moreover, when the question is whether to narrow or overrule one of this Court’s precedents rather than how to resolve an open or disputed question of federal law, further percolation in the lower courts is not particularly useful because lower courts cannot alter or overrule this Court’s precedents. In that situation, the downsides of delay in definitively resolving the status of the precedent sometimes tend to outweigh the benefits of further lower-court consideration. [Emphasis added]

While it is good for the Court to rein in district courts and good to overrule Humphrey’s Executor, it’s unsustainable to keep trying to enforce that overruling on the emergency docket without actually ruling on the merits. That should come swiftly in the next term.

Speaking of questions looming in the coming term, I wrote on Tuesday about Louisiana v. Callais and one of the big Voting Rights Act questions embedded in that and other cases percolating up towards the Court: whether Section 2 of the VRA is enforceable in private lawsuits or can only be enforced by the Department of Justice. Today, in Turtle Mountain Band v. Howe, the Court stayed an Eighth Circuit decision that had ruled that such lawsuits are not authorized. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented without an opinion. They will need to persuade two more of their colleagues if they are to limit VRA suits.