Last updated on August 20, 2020
The Supreme Court in June released a flurry of opinions some of which were applauded by myself and many others as we braced ourselves for the worst. For example, LGBT rights being upheld. But since the summer recess, they have issued many important decisions. What they are doing is hiding in plain sight while they tip the scales for Donald Trump and AG Barr with no briefings, oral arguments, or participation by lawyers.
I am not a lawyer but this story caught my eye and I was unable to determine if someone had already shared the information. I didn't find anything. I’m not the right person to write this diary, but no one else has.
Both articles cited below are worth the read if you care for our democracy. This is scary stuff. My Gawd!
But after the fanfare subsided, the justices have spent the first month of their summer recess handing out an unusually large and divisive number of significant rulings. These rulings are quietly shaping the rules of the upcoming elections, how governments can (and can’t) respond to COVID, the resumption of the federal death penalty, and more. But they aren’t decisions in argued cases left over from last term. Rather, these are decisions on what University of Chicago law professor Will Baude has dubbed the “shadow docket.”
The court’s “merits docket” includes cases in which the justices first decide to grant review, take full briefing (including from outside parties), hold oral argument, and then deliver lengthy, signed opinions providing the court’s reasoning and resolving the case. In contrast, the “shadow docket” consists almost entirely of summary orders, usually only one sentence long. These orders tend to be based on far less participation from lawyers, far less briefing, and no oral argument. And, in almost every case, they offer virtually no insight into the justices’ reasoning—unless some of them choose to write separately to explain their concurrence or dissent. Indeed, unlike merits cases, we usually don’t even know how the justices voted on the shadow docket—unless four justices publicly note their dissent (or three, if it’s an order granting review). For those reasons and others, these orders tend to receive far less scrutiny from the press, the public, and the academy—and far less attention and precedential weight from lower courts. Yet there are more than 6,000 cases decided this way each term. Many of these rulings are as unsurprising as they are unimportant. But not all of them.
As the last month has driven home, the lack of attention distorts not only the public perception of the court but also our understanding of the ways in which the justices’ “shadow docket” rulings can affect our lives. Just since the beginning of July, the justices have issued rulings on the “shadow docket” that
• cleared the way for the first three federal executions in 17 years after lower courts had repeatedly halted them;
• refused to disturb a Nevada COVID-related emergency order that treated churches more harshly than casinos;
• blocked a grassroots effort in Idaho to increase funding for K–12 education;
• allowed President Donald Trump to finish using military construction funds to complete his controversial border wall—even though every lower court to consider the issue has ruled that such repurposing of funds is unlawful;
• pushed back resolution of a dispute between the House of Representatives and the Justice Department over the Mueller report in a way that will ensure that the Justice Department prevails;
• prevented potentially hundreds of thousands of eligible voters in Florida from voting this November by refusing to freeze Florida’s “pay to vote” law, which requires felons to clear any claimed outstanding judgments before voting, and which the lower court had struck down as flagrantly unconstitutional; and
• froze a district court order that had required an Orange County jail to take measures its own policies already required to protect inmates from an outbreak of COVID-19.
Unlike cases on the Court’s regular docket, shadow docket cases receive very limited briefings and are rarely, if ever, argued before the justices. Though the justices will often discuss these cases among themselves, they frequently do so on an extraordinarily compressed schedule — leaving far less time for reasoned debate. That’s often true because shadow docket cases frequently arise from emergency requests asking the Court to grant swift and immediate relief, meaning that the justices will only spend days or even hours pondering how to rule on such a request.
Because many of these cases are resolved in brief orders and without a written opinion explaining the majority’s reasoning, shadow docket cases often have less impact on legal doctrine than cases on the ordinary docket. Lower court judges are bound by the reasoning memorialized in the Supreme Court’s majority opinions, but they can’t be bound by an opinion that doesn’t exist.
The Court does sometimes hand down majority opinions when it resolves cases on its shadow docket. To date, for example, the Court’s only majority opinion governing the rights of voters who are afraid of contracting Covid-19 if they go to the polls is Republican National Committee v. Democratic National Committee (2020). That decision, which effectively required Wisconsin to toss out many ballots cast in its election last April, was decided just two days after the GOP requested an emergency order from the Supreme Court.
Before Trump, the DOJ was cautious in asking the Supreme Court to stay lower court decisions which they viewed as an extraordinary event. Slate noted that in less than three years, “[Trump’s] Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone).”
Those were great days for the traitor occupying the oval office. The 5-4 GOP majority on the court gave Trump the thumbs up by rewarding DOJ egregious behavior. The criminal enterprise in the White House has “achieved a full or partial victory in about two-thirds of cases.”
The Trump administration, for what it’s worth, often argues that Supreme Court intervention is necessary because individual trial judges have handed down an unusual number of nationwide injunctions — orders blocking a federal policy throughout the entire country — since Trump became president. And there are good reasons to be cautious about such injunctions. If Joe Biden is president next year, many Republican judges could try to halt literally any action taken by the new administration.
But according to Gelernt, there’s a good reason why lower courts have so frequently blocked Trump’s immigration policies — and why litigators often feel compelled to seek such relief. “The reason why there have been more national injunctions in the immigration area,” he told me, “is because the Trump administration has enacted so many policies that harm so many people immediately, leaving no choice but to seek immediate national relief.”
It remains to be seen whether the Court will be equally zealous in policing lower court injunctions once Democrats control the elected branches of government. For the moment, however, it is hard to escape the impression that the Court is reaching out to do favors for the Trump administration, even if doing so means ignoring rules intended to prevent the Court from deciding cases too rashly.
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