The Shadow Knows & Loves King Trump

 

The Shadow Knows & Loves King Trump

What do you call a system of government where elections are legally rigged, and where the legislature and judiciary are mere rubber stamps to the executive branch? Not a “democracy,” for sure!

I’ve blogged about the Supreme Court’s “shadow docket,” where they offer an interim ruling, without oral arguments, usually without an explanation but subject to further examination through the extended judicial process… much later. In recent shadow docket decisions, the overwhelming majority have effectively rubber-stamped some rather dramatic unconstitutional moves by the Trump administration. I join with a majority of constitutional scholars who believe this judicial tool has both been over- and mis-used as the means of de facto amending the US Constitution, the most difficult such foundational document in the democratic world to amend. Effectively, with most of such shadow docket “stays,” the main constitutional harms have already wreaked havoc by the time a merit docket appeal returns to the Supreme Court.

Later, I’ll get more into the September 8th Kristi Noem, Secretary, Department of Homeland Security, et el. vs. Pedro Vasquez Perdomo, et al. shadow docket 6-3 ruling that effectively gives ICE agents free rein to conduct random immigration searches (“roving patrols”), where in lieu of the normally required “probable cause” standard for immigration searches and stops, agents may instead employ racial, ethnic and neighborhood criteria as sufficient. ICE agents have ceased filling out forms in advance of immigration raids explaining the basis for their intended actions.

But back to looking at what differentiates “shadow” vs “merit” docket decisions. The headline is that the lack of transparency and the willingness to leave the fundamental constitutional violations intact until final resolution (which could take years) are the powers behind such shadow docket rulings. Except for some rare cases (like litigation between states), the Supreme Court is not a trial court, does not have jurisdiction to conduct fact-gathering proceedings and generally has no obligation to accept a case for review. Except in pure law cases, the Supreme Court generally must accept the facts determined by trial courts (or remand to lower courts for further fact-finding), before it can render full merit-based ruling. There are no determined facts in shadow docket rulings.

While the Supreme Court is subject to several formal recess moments over the year (e.g., the “summer recess”), during most of those “recess periods,” the Court is very active. They cull through their applications to determine which cases they will move to their merit docket, usually under the notion of granting “certiorari,” the court process to seek judicial review of a decision of a lower court or government agency. However, of late, the Supreme Court has increasingly issued “stays” (an interim decision that stays a lower court order pending a later, more formal merit-based, review). “For most of the Court’s modern history, the orders list lived in the background—dense, technical, and largely ignored outside the bar. Over the last decade, that changed as emergency orders began steering headline disputes on compressed timelines. Legal academics have pressed the Court on process and transparency while empirical researchers have tried to measure what, exactly, is happening.” Adam Feldman, Legalytics, August 28th, who prepared the above chart based on the rising number of shadow dockets cases where a true controversy was at bar.

“The ‘shadow docket,’ also known as the emergency or non-merits docket, allows the Supreme Court to make decisions outside its regular, transparent process… Unlike cases on the ‘merits docket,’ which involve extensive briefing, public oral arguments, and lengthy signed opinions, shadow docket matters are handled urgently with far less public visibility.” GovFacts.org. Such shadow decisions should be used very rarely, but they have now become mostly used as a rubber stamp to whatever the Trump administration wants to do. Without fact-finding, the Court usually accepts the administration’s depiction of “facts.”

The above noted Perdomo case is especially troubling. If a US citizen looks Hispanic or is caught speaking Spanish or is in a neighborhood/venue where people who look Hispanic or speak Spanish frequent, without more, ICE agents have total discretion to stop that citizen, and, if he or she cannot evidence citizenship to that ICE agent, can be detained and transferred to an ICE facility. Half or fewer Americans have passports, and I don’t know anyone who carries their birth certificate with them. A supermajority of Americans don’t even have those citizenship-vetted “Read IDs,” usually a driver’s license.

Looking that the Perdomo ruling, David G. Savage and Sonja Sharp, writing for the September 9th Los Angeles Times note: “The Supreme Court has been sharply criticized in recent weeks for handing down orders with no explanation. Perhaps for that reason, Justice Brett M. Kavanaugh wrote a 10-page opinion to explain the decision… He said federal law says ‘immigration officers ‘may briefly detain’ an individual ‘for questioning’ if they have ‘a reasonable suspicion, based on specific articulable facts, that the person being questioned ... is an alien illegally in the United States.’… He said such stops are reasonable and legal based on the ‘totality of the circumstances. Here, those circumstances include: that there is an extremely high number and percentage of illegal immigrants in the Los Angeles area; that those individuals tend to gather in certain locations to seek daily work; that those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants; and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English.’” But there is a lot of “on the spot” discretion left to the ICE agent. A naturalized citizen may have a Hispanic accent and live or work in one of those “places.”

“Needless to say, “Justice Sonia Sotomayor called the decision ‘yet another grave misuse of our emergency docket. We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent.’

“The Government ... has all but declared that all Latinos, U.S. citizens or not, who work low wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction,” she wrote… Sotomayor also disagreed with Kavanaugh’s assertions… ‘Immigration agents are not conducting ‘brief stops for questioning,’ as the concurrence would like to believe. They are seizing people [by] using firearms, physical violence, and warehouse detentions,’ she wrote. ‘Nor are undocumented immigrants the only ones harmed by the Government’s conduct. United States citizens are also being seized, taken from their jobs, and prevented from working to support themselves and their families.’” LA Times.

I’m Peter Dekom, and based on how it has been done in most rising autocracies, if you want to know how a police state rises above the rule of law, read the above blog again.