The Shadow Knows – Co-conspirator for Autocracy?

The Shadow Knows – Co-conspirator for Autocracy?

“Owing to their unpredictable timing, their lack of transparency, and their usual inscrutability, these [Supreme Court] rulings come both literally and figuratively in the shadows.” 

 Law professor Stephen I. Vladeck in testimony before Congress, September 29, 2021

“This is not the first time the court closes its eyes to noncompliance, nor, I fear, will it be the last. Yet each time this court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law.” 

Supreme Court Justice Sonia Sotomayor strongly dissenting, on June 23rd, over a shadow docket “hold” on preventing the Trump administration (which had resisted prior rulings) from deporting vetted undocumented aliens for incarceration in countries, not their own nations, without due process.

When the Supreme Court wishes to railroad a controversial case, without the benefit of full briefing and oral argument, sometimes under the guise of issuing a “pause” in the proceedings pending greater review, it has increasingly relied on something called the shadow docket. Here, an unsigned opinion is issued, sometimes with vigorous dissent. “Fundamentally, the shadow docket is where the Court rules on procedural matters, such as scheduling and issuing injunctions. But its role is changing, and the full story is more complex.

“Supreme Court cases take one of two tracks: merits docket or shadow docket. Each term the Court decides some 60 to 70 cases on the merits docket. Before rendering a ruling in each one, the Court considers numerous briefs and holds oral argument. It then issues a decision with a lengthy opinion explaining its reasoning, often with concurrences and dissents…

“Two significant changes followed. First, once the justices began working collectively on the shadow docket, they stopped holding hearings. The reason for this is not altogether clear — there is nothing in law prohibiting oral argument in cases on the shadow docket, even when decided by all nine justices. Second — and this is a more recent change — the justices have begun to issue far more rulings, and more significant rulings, through the shadow docket. Today, the justices grant relief in contentious shadow docket cases twice as often as they did just a few years ago. The surge in issuing this relief has coincided with Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joining the Court.” Brennen Center, July 19, 2022.

The current shadow docket case that is generating such controversy, Department of Homeland Security vs DVD, evolved from a petition for emergency relief, and effectively granted the Trump administration a stay of an appellate ruling against the administration’s move to deport certain migrants to countries other than their homelands. The conservative six “majority itself provided no rationale for the decision. That is often the case on the Supreme Court’s emergency docket, but the majority has lately weighed in more regularly to offer some explanation for its decisions.

“Despite Trump’s vociferous – and private – complaints about the judiciary and, at times, the Supreme Court itself, his second administration has won far more emergency appeals at the high court this year than it has lost. The order Monday [6/23] marked the 10th time the court has granted a request from Trump on the emergency docket, though a few of those cases amounted to a mixed win for the administration…

“Writing that President Donald Trump’s administration had ‘openly flouted two court orders,’ Sotomayor warned about the long-term consequences of siding with the Department of Homeland Security in the cases… [and] slammed the Trump administration’s handling of immigration matters in [her fiery dissent that] accused her colleagues of ‘rewarding lawlessness’ by backing its latest emergency appeal.” CNN, June 23rd. In theory, this is not a final ruling, but in the interim, deportees are being sent to those “not my homeland” countries, often to nations on the Department of State’s “do not travel” warning list for American citizens.

Since Trump’s executive orders have functioned as substitutes for congressional legislation, from sending active duty Marines into California as police officers (they can “detain” – which is called an “arrest” under the law), deporting undocumented aliens – even desperately needed farmworkers, construction crews amid a housing shortage, slaughterhouse labor and those providing child and elder care, hotel and restaurant staffing, forcing an increasing number of small American businesses to close – without due process… moving deportees around to dodge court orders mandating their return or release.

Since the Congressional majority seem to be MAGA Trumpers, doing the President’s bidding and even overlooking Trump’s unilateral decision to declare de facto war on Iran, simply ignoring the Constitutional grant of war powers solely to Congress, the only other of the three branches of the government, the judiciary, becomes the last guardrail to representative democracy left. And as ultra-conservative and often openly corrupt Supreme Court justices bow to Trump, bending to support his increasingly autocratic, and seemingly economically ruinous rule, the fat lady is leaving the dressing room… and getting ready to sing her deadly swan song.

I’m Peter Dekom, and I feel shame at not having done more to stop this transition to a totalitarian nation, a kleptocracy only serves a small segment of our nation above all others.