Legislating from the Bench

His fellow conservatives are even making John Roberts angry

Photo by Anna Sullivan on Unsplash

When Justices go so far right that they anger a Chief Justice who has shown himself to be willing to toss the Constitution aside for partisan purposes, we know things are getting out of hand.

What is The “Shadow Docket”?

The Court’s use of the “shadow docket” has been controversial. The shadow docket is the nickname that has been given to the “emergency docket”. Emergency docket cases have been useful in circumstances in which the Court wanted to prevent an action that would be irreversible if it took place while the Court deliberated. Death penalty cases are the clearest example of the appropriate use of the emergency docket. Such cases typically do not go through the full briefing and hearing process of a formal opinion. No decisions regarding the merits of the original case are made. Opinions from the emergency docket are generally brief and unsigned. Because an emergency docket decision usually sets aside a decision made by a lower Court decision, the Justices don’t have to defend their decision. They can just say “yay” or “nay” and, at that, anonymously.

The Court decides without hearing arguments, which means they don’t follow the traditional process of briefs, oral arguments, and private discussions among the justices to produce lengthy, heavily footnoted opinions. To be sure, the emergency docket has been used for two centuries. What’s new is that it’s being used frequently by conservative Justices to sneak around the law.

Weaponizing the Shadow Docket

For the past decade, the conservative Court has used the shadow docket (the term ruffles the feathers of the rightist justices, so I’ll continue to use it) to override lower Court decisions that it just doesn’t like. The radical right and several conservative Justices are weaponizing the shadow docket in an effort to shape laws they find offensive and protect laws that keep them in power. The conservative Justices are making significant changes to policy without having to make principled justifications for its decisions. If all that wasn’t bad enough, the present Court is treating shadow docket decisions as deserving of preference and precedent…even though there are no decisions to read. Scholars, senators, and even some of the justices themselves have raised concerns about the weaponization of the shadow docket. They say the decisions are rushed, that they don’t allow for full arguments, and that the rulings are less transparent than typical cases.

Even John Roberts is Angry

Lately, even Chief Justice John Roberts is getting fed up with the overtly lawless use of the shadow docket by his conservative peers. Without comment, the Court overruled a District Court that had stayed a rule set by the Trump EPA that prevented states and tribes from certifying projects that had destructive environmental impacts. States and tribes had been able to make such decisions for more than 50 years; naturally, that ability upset Big Oil, Big Timber, Big Mining so they were pleased when states’ and tribes’ control over their own lands was taken away by the Trump EPA. Some states and tribes sued to negate the Trump EPA rule and a District Court set that rule aside while it decided. Five months later, Big Oil and its red state allies took the case to the Supreme Court, which took it in the shadow docket.

Let’s recall the expressed purpose of the emergency docket: to make quick decisions about rules and policies that will have irreversible impact if allowed to stand. That’s what the Court’s own rules require. There were no such “irreversible outcomes” that were prevented by the SCOTUS decision to let the Trump EPA rule stand. In fact, as Justice Kagan wrote in her dissent, those defending the Trump EPA rule couldn’t provide evidence of even one project that had been delayed as a result of the District Court’s ruling or a single project that was threatened by the ruling. The majority’s utter disregard for the rules underlying the use of the shadow docket were so egregious that even John Roberts joined the dissent. All to say, the Court flouted its rules in even accepting the case onto the shadow docket.

In setting aside the lower court’s stay of the Trump EPA rule, the Supreme Court gave no reason, provided no comment, no discussion of the merits of the case one way or another. It simply decided in favor of Big Oil and against the ability of local governments to manage their own affairs. This is legislating from the bench at its worst; the Court simply decides what’s in the interests of the right wing and its corporate benefactors without explanation or reason.

In February, the Court accepted a case onto the shadow docket to review a lower court’s stay of Alabama’s overt efforts to rig elections in that state. Alabama is 27% black. That state’s GOP legislature packed many black voters into just one district, a clear attempt to dilute black representation in Congress. The Voting Rights Act (what’s left of it) still outlaws racial gerrymandering. A three judge panel (two of them Trump appointees) handed the gerrymandered map back to Alabama legislators and told them that it violated the Voting Rights Act. They instructed the legislators to try again. Instead, Alabama went to its right-wing friends on the Supreme Court to keep its racially motivated map.

The Supreme Court could have said, “We’ll take this up during our next session but there’s no emergency here. Do as the lower Court said and we’ll look at it later.” Alabama knew it could count on enough activist conservative Justices to pull strings to allow its efforts to undermine democracy to stand. And that’s just what they did. The majority argued that it was too close to an election to stay Alabama’s gerrymandered districts. The imminent injury that would be borne by minority voters in keeping the gerrymandered maps seems not to have been a factor in the majority’s thinking. The majority decision was so activist, so blatantly slanted toward the partisan interests of the GOP that, again, Chief Justice Roberts sided with the dissent, writing that the lower Court had applied the Voting Rights Act correctly. Essentially, the majority of the judges are telling us that any law subverting the rights of minorities to representation will pass muster so long as the law doesn’t explicitly state that it was written so as to prevent minorities from voting.

In August 2019, the Court, in a 5–4 shadow docket decision, allowed then-President Donald Trump to spend money not authorized by Congress for construction of his border wall, even as proceedings over the spending’s legality continued. This was a clear case of judicial activism and denying the importance of the people’s representatives.

In the aforementioned example, the conservatives on the Court promoted the agenda of an administration it favored. In 2016, the Court told us that executive powers of administrations that it didn’t like weren’t to be treated with such deference. That year, the Court blocked the Obama administration’s initiative to limit carbon emissions from power plants, siding with business groups and Republican-led states that wanted the climate-change regulations put on hold while they challenged them in court. The plaintiffs insisted that they needed emergency relief from the statute in spite of the fact that it gave them six years to comply with it. It was impossible for the plaintiffs to argue that the statute would cause immediate and irreparable harm to them. With this Court, they knew they wouldn’t need to. In this instance, the conservatives were so eager to do the bidding of Big Energy that they grabbed the case even before a lower court had made a decision.

For too long, we on the left have let the right-wing extremists get away with the argument that justices who Democrats nominate are activists, while conservative justices are “textualists” or “originalists” who go by the letter of the Constitution. The blatant misuse of the shadow docket by this Court’s right wing justices provides all the evidence we need that they have no regard for the Court’s own rules, much less anything in the Constitution. We can be certain that those justices will continue to make partisan decisions that aid the powerful and the wealthy while making the lives of working families more difficult.



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George Bohan

George Bohan

Born and raised in the South, living in Ohio. Writes about politics, management, and religion.