Is the U.S. Supreme Court Becoming an Unaccountable Secret Tribunal

 

Is the U.S. Supreme Court Becoming an Unaccountable Secret Tribunal?

Abuse of the Shadow Docket under the Guise of “Emergency”

Most people think of the United States Supreme Court as an open tribunal that hears cases, debates perhaps behind closed doors, but generally a body that publishes its opinions making clear the position of each justice on the Court. But it does not always work that way, and there are “emergency” backdoors that have been increasingly used by the Court to obfuscate their decisions, not even identifying which justices supported a simple order, often without any opinion. In a Court with a clear 6 to 3 conservative majority, the opportunity for judicial abuse without a real explanation is dramatic. And that abuse is here today and very real.

The August 27th Congressional Research Service explains the basic workings of the Court… and that “emergency” exception that is becoming incrasingly a routine process for the conservative-controlled Court: “Most decisions on the Court’s non-merits docket involve either granting or denying certiorari [the Court’s acceptance to hear a case] or routine procedural questions,  but some of the Court’s non-merits orders in emergency matters have a major impact on high-profile litigation. Emergency litigation before the Supreme Court often concerns requests for preliminary injunctive relief. In theory, such relief is designed to preserve the status quo while a case is pending and remains in effect only until the courts can fully consider the merits of the case. However, emergency matters are often subject to rigid real-world deadlines, and sometimes the federal courts are not able to consider the merits in full before those deadlines pass. In those cases, a decision to grant or deny a preliminary injunction (or a stay of a preliminary injunction issued by a lower court) may effectively  resolve the case.

“The Supreme Court’s procedures in non-merits matters differ significantly from its procedures in merits cases. In merits cases, the Court typically considers briefs and oral argument from the parties. In addition, the Court often receives input from non-parties known as amici curiae, who raise additional issues and arguments potentially relevant to the case. For non-merits matters, the Court generally does not hear oral argument and receives limited input from non-parties. Briefs from the parties are generally shorter than merits briefs, may be prepared on a very tight timeline, and may be based on a limited factual record; in some cases, the Court does not wait for a full briefing before issuing an order.

“The Supreme Court’s decisions generally take different forms in merits cases and in non-merits matters… When issuing a merits decision, the Court usually publishes a written opinion that explains the Court’s reasoning and notes which Justice authored the opinion and which Justices joined it. Justices may also file separate opinions concurring or dissenting in full or in part; those separate opinions are also signed by their authors and any other Justices who joined them. By contrast, the Court frequently decides non-merits matters using summary orders. While those orders sometimes include a brief explanation of the legal reasoning underlying the decision, they often lack legal analysis. Nor do summary orders typically reveal how the Justices voted. As with merits decisions, Justices may concur in or dissent from non-merits decisions, and may elect to file separate statements explaining their position.” These “emergency rulings” are often referred to as the Court’s “shadow docket.”

Moira Donegan, writing for the August 31st Guardian UK, tell us how this formerly rarely used Supreme Court ruling process has become a tool for a conservative majority Supreme Court to issue rulings, without identifying individual votes and usually without a written opinion, in an increasing number of cases: “Last week [8/25], it was Remain in Mexico. On Tuesday [8/31], the supreme court issued an order requiring the Biden administration to reinstate the Trump-era policy that required asylum seekers from Central America to stay across the border in Mexico while their claims are adjudicated. It was an uncommonly aggressive intervention into foreign policy, an area where previous courts have preferred a light touch, and it posed massive logistical, diplomatic and humanitarian crises at the border that will need to be rapidly resolved if the Biden administration is to comply with the order.

“Two days later [actually on 8/26], it was the eviction moratorium. On Thursday, the court blocked an extension of the federal emergency ban on evictions, gutting a 1944 law that gave the CDC the authority to implement such measures to curb disease, and endangering the 8m American households that are behind on rent – who now, without federal eviction protection, may face homelessness.

“Both of these orders last week [end of August] were issued in the dead of night. Their opinions were truncated, light on the details of their legal reasoning, and unsigned. Vote counts were not issued showing how each justice decided. And despite the enormous legal and human impact that the decisions inflicted, they were the product of rushed, abbreviated proceedings. The court did not receive full briefs on these matters, heard no oral arguments and overrode the normal sequence of appellate proceedings to issue their orders.

“Welcome to the ‘shadow docket’, the so-called emergency proceedings that now constitute the majority of the supreme court’s business. Minimally argued, rarely justified and decided without transparency, shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters. To have an issue addressed on the shadow docket, a litigant has to apply for ‘emergency relief’ – usually to stop a decision against them from a lower court from going into effect while appeals proceed. Traditionally, applicants would need to demonstrate that they would suffer ‘irreparable harm’ if their petition wasn’t granted immediately. So one historical use of the shadow docket has been in federal death penalty cases, where the court has used the emergency proceeding to affirm or deny requests for stays of execution.”

“But in recent years the court has largely dispensed with any meaningful application of the irreparable harm standard, and instead has entertained emergency relief petitions from more and more litigants, issuing shadow docket rulings on increasingly significant and controversial legal questions without the rigor or transparency that such issues demand.

“The term ‘shadow docket’ was coined in 2015 by a conservative law professor to refer to the thousands of supreme court actions each term that defy the ‘normal procedural regularity’ of the federal appellate process. A newer, expanded version of the shadow docket began to emerge in 2017, when the Trump administration came to power. Previously, shadow docket emergency requests had been rarely used, to advance the interests of the governing administration. From 2001 through 2016, the Department of Justice applied for these emergency relief interventions from the court only eight times. During the four years of Trump’s presidency, however, the justice department applied 41 times. The use of shadow docket requests by Trump’s justice department especially accelerated after 2018, when Justice Anthony Kennedy retired and was replaced by Brett Kavanaugh, initiating the court’s rightward lurch.”

Populist/conservative forces have successfully promulgated voter suppression/nullification legislation in most red states, gerrymandering is in full tilt in those same states based on new short-changed Census information, and they now have the highest court in the land to do their bidding. The Senate, which allocates seats based on land mass (e.g., states; 2 U.S. Senators each) vs population, has half its seats elected by 30% of the American voters… with a filibuster rule that makes the U.S. Congress the only legislative body in the democratic world that is unable to pass most laws even with a majority vote. Republican Presidents have won the popular vote only once in 32 years. Democracy?

I’m Peter Dekom, and if you think the United States is a true representative democracy, think again!