Accountability, Responsibility and the End of the Robert’s Supreme Court

 

The United States has changed significantly in the last few years. Mythology and conspiracy theories, embraced by some of those in the highest elected offices in the land, have replaced fact and, to a fairly large segment of the electorate, led to the denigration and marginalization of trained and educated professionals. Individuals have claimed exemption from mandates aimed at saving lives, believing that somehow, their right to carry on even at the risk of death to their fellow Americans, is somehow (and incorrectly) their God-given or constitutional right. 

We are quick to lambast and deny so many trying to flee their gun-driven, cartel oppression home nations, even though their terror is a direct and immediate result of America’s inability to stem its own demand-generating addiction rates… simply looking the other way as gunmakers unabashedly market and tailor their best small arms to cartel buyers. And as such weapons, easily purchased in the US, find no difficulty being smuggled to cartel criminals across the border. Inane arguments about “Second Amendment Rights,” and how guns are needed to protect our families, conveniently ignore reality: even though only one in 35 civilian gun homicides is deemed “justifiable” and mass shootings continue to skyrocket. 

Culture wars, the marginalization of racial, ethnic and gender minorities and their human rights, and the overriding fact that 73% of Americans with school-age children are not anxious to impose rigid but ambiguous anti-CRT rules on their children’s teachers. Yet these unnecessary and restrictive anti-CRT laws are still passed by evangelically inspired politicians… and we wonder why teachers are quitting in droves with few qualified applicants ready to live in that restrictive world.

Right-wing middle-aged and elder white male legislators pass anti-abortion statutes, hoping that a Supreme Court with two probable rapists (noting the FBI purposely did an expedited and knowingly incomplete vetting) will sustain their efforts to reverse Roe v Wade, enjoying a wave of gerrymandered and white-voter-biased anti-minority, anti-women legislation that defies the overwhelming majority will based on every credible poll taken on the subject. The Supreme Court has become a quasi-legislative body with no checks or balances, that has affirmed or will affirm these deepest and most anti-democratic desires.

Bottom line: squeaky-wheel right wing minorities, successfully marginalizing opposing voters in their states, have dictated an entirely new set of underlying basic rights that deeply offend the majority of Americans, without a shred of remorse… or accountability for the obvious consequences. We do not think like a nation, and with rare exception act like a nation. To see how far the United States as a “democracy” has fallen in the eyes of the rest of the world, please see my April 4th A Nation Sits in Intolerant Judgment blog. We passionately support Ukraine’s democracy, just as we erode and unravel our own.

Supreme Court Chief Justice John Roberts has presided over a court that has reverted to a level of obfuscation – deciding cases on a purported interim basis without any reasoning, but effectively making a ruling that lower courts are bound to follow – that we have never seen before: a significant increase in so-called shadow docket rulings. In an April 13th OpEd to the New York Times, University of Texas constitutional law professor, Stephen Vladeck examines this accelerating abuse of Supreme Court discretion.

“The term ‘shadow docket’ was introduced by the University of Chicago law professor Will Baude in 2015 to describe the more obscure part of the Supreme Court’s work — the thousands of unsigned and usually unexplained orders that the justices issue each year to manage their docket. Those orders are in contrast to the merits docket, the 60 to 70 cases each year that go through rounds of briefing and oral argument before being resolved in long, signed opinions for the court…

“[An early April 5-4 shadow ruling upholding a Trump-era limitation of the Clean War Act] cannot be ignored, especially because of the brief but blistering dissenting opinion written by Justice Elena Kagan. It’s not the first time that liberal justices have called out most of the court’s conservative justices for their increasingly frequent use of the so-called shadow docket — unsigned, unexplained orders like the one last week. But it was significant for being the first time that Chief Justice John Roberts joined her (and Justices Stephen Breyer and Sonia Sotomayor) in doing so. 

“[In a September shadow docket ruling that refuse to stop a Texas abortion law,] Justice Kagan noted in a dissent:] ‘The majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.’… Owing to its inscrutability, the shadow docket has historically received much less public attention or scrutiny. Most shadow docket orders are anodyne — matters as routine as refusing to take up an appeal or giving a party more time to file a brief.

“But far more than ever before, the court is using procedural orders on applications for emergency relief while appeals work their way through the courts to resolve disputes affecting the lives of millions of Americans — whether in blocking a rule from the Occupational Safety and Health Administration on a vaccination mandate for large employers, refusing to block Texas’ ban on most abortions after six weeks or putting back into effect congressional district maps that two Alabama lower courts struck down as violating the Voting Rights Act.

“Time and again, the justices are ordering lower courts to treat these decisions as precedents — even when, as in last week’s ruling, the order includes no analysis to apply to other cases, which often makes the precedent difficult for lower courts to apply…

“The justices have long insisted — as Justices Sandra Day O’Connor, Anthony Kennedy and David Souter put it in 1992 — that ‘the court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the nation.’ The proliferation of principle-free decisions affecting more and more Americans — and with a clear, troubling tendency of favoring Republicans over Democrats — calls that legitimacy into increasingly serious question.

“It’s understandable, then, why Chief Justice Roberts would finally speak out. No one better understands the stakes for the court’s credibility — and institutional viability. If even his objections can’t persuade the other conservatives to stop abusing the shadow docket, then that may signal the willingness of the court’s conservative majority to go even further in the future and to use the shadow docket to resolve even more significant and contentious constitutional questions.”

Chief Justice John Roberts, who generally backs conservative results, has finally sensed the growing abuse of this shadow docket process. It is a slam to the credibility of the court, particularly when the result is the reversal of major statutes or long-held Supreme Court precedents, made even more egregious when the resulting reversal flies in the face of the will of a clear majority of Americans. But despite his title, the Chief Justice has lost control of his bench. It's a right-wing tribunal without any requirements. 

I’m Peter Dekom, and it is indeed unfortunate that most Americans do not recognize the appointment of Supreme Court justices as the most important long term impact any president can make.