It’s been long few years as many of us have come to realize that the institutions we count on have been failing us, one after another.
Welcome to the shadow docket of the Supreme Court.
I’ll leave the interesting twitter takes on the latest shadow docket ruling to Anne Laurie, but in the meantime, here are some longer articles – not specific to the abortion ruling, but about the shadow docket itself.
Supreme Court “Shadow Docket” Under Review by U.S. House of Representatives – American Bar Association
First coined in 2015 by law professor William Baude, the term “shadow docket” refers to the thousands of decisions the Supreme Court hands down each term that “defy its normal procedural regularity.” Unlike the 60-70 cases the Justices hear on the “merits” docket, where the Court receives full briefings, hears oral arguments, and delivers lengthy, signed opinions, cases decided by way of the “shadow docket” lack such public deliberation and transparency. According to Court watchers and analysts, increasingly often in recent years, the Justices are handing down one- or two-sentence summary decisions late at night in controversial cases like those involving the recent federal executions.
These shadow docket orders often do not include information about how each Justice voted or why the majority came to a certain conclusion, potentially leaving lower courts in the dark about how to apply Supreme Court precedent moving forward. In the case of the federal death penalty cases, the government often relied on these unsigned emergency orders from SCOTUS, typically handed down the night of the scheduled execution, to clear away any remaining legal barriers preventing the execution from moving forward. Recognizing this recent shift in Supreme Court practice, on February 18th, 2021, the House Judiciary Committee held a hearing on the shadow docket, listening to legal experts explain the history of the practice, why Congress should be concerned when SCOTUS doesn’t “show its work,” and suggestions for reform. While every Democrat who participated in the hearing seemingly expressed concern over the shadow docket, various Republican lawmakers also criticized this recent trend.
Analysis: U.S. Supreme Court’s ‘shadow docket’ favored religion and Trump – Reuters
WASHINGTON, July 28 (Reuters) – As midnight approached on the eve of the U.S. Thanksgiving holiday, the conservative-majority Supreme Court granted emergency requests by Christian and Jewish groups challenging COVID-19 crowd restrictions imposed by New York state.
The twin 5-4 decisions in favor of the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish congregations were two of 10 decisions in the past year backing religious groups chafing under pandemic-related measures that forced them to close their doors or otherwise limit usual activities.
All 10 requests were granted via the court’s “shadow docket” in which emergency applications are decided hurriedly and sometimes late at night in a process that critics have said lacks transparency.
A Reuters analysis of emergency applications over the past 12 months offers a glimpse into the full range of parties seeking urgent relief from the top U.S. judicial body through the shadow docket. The justices have increasingly relied upon this process to make rulings in a wide array of cases without the normal deliberative process involving public oral arguments and extensive written decisions.
The analysis found that the court repeatedly favored not just religious groups – another example of the expansive view it has taken in recent years toward religious rights – but also former President Donald Trump’s administration, while denying almost 100 applications by other private individuals or groups.
Analysis: Biden’s Supreme Court losses prompt more ‘shadow docket’ scrutiny – Reuters
WASHINGTON, Aug 27 (Reuters) – President Joe Biden’s administration was dealt a double blow by the conservative-majority Supreme Court this week, raising new questions about how the justices handle cases brought via an emergency process known as the “shadow docket.”
The court in recent years has increasingly made substantive decisions on major issues via the shadow docket, deciding quickly and sometimes late at night in a process that critics from across the ideological spectrum say lacks transparency.
The administration of Biden’s Republican predecessor, President Donald Trump, did very well with the process, winning a wide majority of the cases it brought via emergency applications. Some experts attributed that to a court that has traditionally been deferential to the White House.
This week’s decisions have raised questions as to whether a Democratic president receives the same friendly reception from a court with a 6-3 conservative majority.
“What we are seeing are the consequences of a deeply conservative court, with the added travesties of the shadow docket,” said Elizabeth Wydra, president of the Constitutional Accountability Center, a liberal nonprofit based in Washington.
The US supreme court is deciding more and more cases in a secretive ‘shadow docket’ – The Guardian
These emergency rulings – short, unsigned and issued without hearing oral arguments – undermine the public’s faith in the integrity of the court
…Both of these orders last week 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.
Open thread.
WaterGirl
I probably confused everyone because I took this post down when Cole’s post went up, and then the old Anne Laurie post from 2020 published accidentally as I was making a new category, so I took that down, too.
Anyway, this thread is open for business, if anyone can find it! :-)
laura
I’m feeling very stabby today, Very Stabby. I expect the virgin mayor of keg city is polishing quite the hate boner right about now.
WhatsMyNym
@WaterGirl: I liked reading the old AL post, it was a good reminder.
Feckless
This Court as it is currently comprised is illegitimate. This is a republican court where a Democrat will find no justice, ever.
I say scrap it and start over.
Why is the justified democratic lack of trust in the supreme Court less important than the fears of Republicans fact-free election conspiracies?
One judge has resigned over this.
One.
While millions of other legal professionals are just good Germans.
Splitting Image
I can’t speak for anyone else, but over the last four years I have lost the last shreds of any willingness I ever had to give these murderers the benefit of the doubt.
The same group who openly talked about letting the old and the sick die rather than do what it takes to curb a pandemic, now spinning on a dime to call themselves “pro-life”?
If the phrase “pro-life” ever meant anything, Abbott and his fellows have done to it what Stalin did to the word “communist”.
Xenos
I am trying to wrap my head around whether providing malpractice insurance to obstetricians, generally, is now impossible in Texas.
Home births for everybody!
MontyTheClipArtMongoose
@Splitting Image: the gqp is pro-control
What Have the Romans Ever Done for Us?
It honestly seems like the Supreme Court is using the shadow docket to make themselves the unelected governing council of the Unites States. Like, they’re the boss of the President, and probably Congress if Congress crosses them. It’s nuts.
Raoul Paste
Medical bounty hunting and spying on your neighbours? It really is beyond the pale
germy
JPL
Can the same person be sued by a number of different people? Woman has miscarriage, and neighbor believes it was caused by her husband’s …. Can the husband be sued not only by that neighbor, but by several neighbors? Since miscarriages are abortions, are they going to have different categories, or is it open season on females?
Anyone else fed up with the Evangelical Terrorists taking over Texas and other parts of the south?
Betty
@Feckless: Agreed. Without serious court reform, we are in a heap of trouble.
lowtechcyclist
Seems like we need either a Federal statute making abortion rights the law all across America, or we need to expand SCOTUS, or both.
I wonder how Sen. Sinema feels about opposing the filibuster when it would preserve a decision like this one.
MisterForkbeard
Fight fire with fire, I guess. Make mask-wearing something you can sue people for violating. Put bounties up.
Not that this would actually WORK. Maybe instead what we do is just continually sue Republican congresspeople and the governor for assisting in abortions, since the law literally says they can’t recover costs. Find ANY justification (The governor didn’t close down the roads around the clinic) and sue them, make them eat the costs.
Really, the solution is to eject the Roberts Court, as they’re hopelessly compromised.
The Moar You Know
@What Have the Romans Ever Done for Us?: Congress did this to themselves starting back in the 1970s when they decided to throw any particularly complex, difficult, or (most to the point) politically unpopular decisions to the judiciary so they wouldn’t have to take a stand on anything that could get them tossed from office.
The judiciary was more than happy to comply, and as a result we now have a branch of government that in reality is far more powerful than the other two that are supposed to hold it in check.
Almost Retired
My first reaction was that this Texas law was essentially the Legislative equivalent of “The Producers” – “Let’s pass a bill so horrific that the Supreme Court will have to strike it down. And then we can slip a slightly less draconian bill under the radar” or something like that. Except they underestimated the Supreme Court.
Bruce K in ATH-GR
Slavers. That’s what the 21st-century GOP has become. Slavers and totalitarians and seditionists and traitors and murderers. They’ve made any pregnant woman in Texas a slave to the embryo within her, even if its chances of becoming a human being are a straight flat zero. (Oh, and they’re developing their own southern-fried Stasi on top of it.)
Cermet
@MisterForkbeard: Congress is the ultimate “law of the land” even as ruled by the Inferior (aka supreme) court. As pointed out, congress has failed and allowed this monster to grown like a parasitic fungus enabling all manner of harm to the body politic (like corporations given human rights but no real legal jeopardy – how that makes sense is beyond me.) Identical to the war powers act allowing the President to make war w/o congress approval for 6 months and even then, only need a vote of support rather then a declaration of war.
laura
I just donated a hundy to Rewire because Imani Gandy fights the good fight. Anyone else want to do the same/similar?
https://rewirenewsgroup.com/
Edmund Dantes
How’s that commission on the judiciary coming along at identifying what’s wrong and needs reform? Got to be close to the 6 month mark on it. Or was that only from when they first met?
A lot of Dem politicians and legal people really need to finally wake up and acknowledge what’s been the 40 year program of the Federalist society. They need to realize unless they do something to actively oppose it. It isn’t just going to work out because of the better angels of the gop judges. There are no more Souters. They’ve already became Democrats or been weeded out by the Federalist society in law school.
The Truffle
Expand the court. Add justices. Add term limits. No more lifetime appointments.
Texas is in for a shit show and I hope that the state Dems are up to it. Now can we have a backlash against the GOP?
The Truffle
@Edmund Dantes: My guess? They want to pass an infrastructure bill first.
RaflW
Has anyone made heads or tails of the vague and insane “intends to” part of the TX abomination?
It strikes me as a potential thought crime (or tort, since the ‘remedy’ is a civil suit). If one intends to get an abortion, or intends to assist another in procuring same, post 6 weeks, is that mere intent actionable by any rando who feels like suing? (Not a lawyer, so I really am wondering if we’re at that brave new world point.)
One would hope that a court would require some sort of evidence of the intention, but as we know from life experience, people without grounds file suit all the time as harassment, intimidation, or plain bad faith. And it seems like a lot of the time, the person sued struggles to recover costs if the damn thing is frivolous.
E.
@Edmund Dantes: I fear the time for that was a long time ago. How many times have I begged my friends to effing VOTE because of the risks to the Supreme Court? Unless we expand the court I don’t see how this is going to resolve in any favorable way. And for that we need miracles in 2022. Sigh. Luckily, climate change will kill us all before the Supreme Court can do too much damage.
Philbert
Start accusing GOP Texas women. Probably lose but the harassments would be fun.
Yarrow
What I’m finding shocking is the lack of attention this whole thing is getting. The Today show had one short segment on it, not in the first half hour. That’s it. My inbox is not being flooded by Planned Parenthood or Democrats about this issue. I got tons of email yesterday and the days before begging for money but so far nothing today.. Even here at Balloon Juice this is the first post on it. The post has been up for an hour and there are only 24 comments. Why is all that?
Urza
Its Texas, so I have to ask, how many supposed Democrats voted for this atrocity? And how fast can they be primaried.
Jim, Foolish Literalist
@The Truffle:
The non-on-line left has no idea who is on the Supreme Court much less what it does.
I think that’s a fundamental misdiagnosis by Levitz. Those voters don’t have “elite lawyer brain”. They just don’t think about it.
Meanwhile, large parts of the on-line left accused those of us who brought up the Supreme Court as trying to “blackmail” them. I never really understood that except that it made them feel righteous and savvy. And even after trump, Coney Barrett and Leonard Leo joined hands to dance on RBG’s grave, some of those same people were still saying that Biden had to give them a reason to vote for him
Urza
Republicans do evil stuff isn’t exactly breaking news anywhere. While I agree with you it should be making more headlines, it has been known this was coming for awhile and there were quite a few articles about the deadline last night.
MontyTheClipArtMongoose
@JPL: this is a most dangerous game, friend
The Truffle
@Jim, Foolish Literalist: I wonder about what this means in Texas, where they can’t even keep people from freezing to death.
RaflW
@Feckless: “This Court as it is currently comprised is illegitimate.” Yes.
FWIW, and in our corroded politics, perhaps very little, I circle back to whoever on the twittbox has been talking about how government is at the consent of the governed, and that a 6-3 far-right SCOTUS has been created while Dems have won 7 of 8 prez elections (vote-win, not E.C. win).
The Court is indeed illegitimate. And functionally breaking Roe via this hands-free maneuver confirms, for me at least, that Roberts et all know they’re illegitimate.
Where the twitterati are wrong above is that in an authoritarian hellscape, the governed get run roughshod for decades or centuries. How much ‘consent’ is there in Russia or China for their leaders? Sure, they throw bones and keep the lights on so they don’t get overthrown, but consent? Hahaha.
MisterForkbeard
@Edmund Dantes: If I remember right, they’re supposed to deliver recommendations in another month or two.
WaterGirl
@Feckless: What judge has resigned?
edit: I should also have said that I agreed with everything you wrote.
Yarrow
@JPL: I think any man who gets a woman pregnant is helping her get an abortion. I mean, the woman can’t get an abortion if she isn’t pregnant. He helped. He should be sued.
Yarrow
@Urza: It was not widely covered.
RaflW
@What Have the Romans Ever Done for Us?: It may be too late, but I have read some commentary over the years that the SC has the extreme power it does now because the Congress has refused to exercise its own co-equal power.
As an armchair participant, I think theres meaning there. And I will fault Dem leaders for a chunk of this. We/our reps have relied far too much on judges because it’s been expedient, and for a time the judiciary was less conservative than the right power block elected to office.
But legislating has become moribund and sclerotic. A vibrant, activist Congress could engineer some powerful showdowns with Scotus. The Court IS political. It needs legitimacy to survive and isn’t all powerful – unless the other legs of the stool collapse or are too long in the hands of the same party.
MisterForkbeard
@Yarrow: If I had to guess, it’s because it’s the media has been blowing up Afghanistan and trying to make it a scandal, while this is ‘unexciting’ – it’s just the Supreme Court not doing something.
That thing they’re not doing is their job and it effectively overturns Roe in a particularly horrific way (literally puts bounties on women and Doctors, and then makes them defend themselves in a vastly unfair state), but: Republicans aren’t upset over it and there aren’t explosions, so it’s not worth covering.
WaterGirl
@The Truffle:
That has been my guess about nearly every issue where someone is saying “why haven’t they done anything about X?”.
SuzieC
How soon until the first abortion vigilante suit in Texas? Then a court will have to grapple with this travesty. Do nosy neighbors have standing to object to a possible abortion by the slut next door?
JPL
@Yarrow: Someone on twitter mentioned that airlines are at risk, because if a woman flies out of state to have a legal abortion.
RaflW
@laura: I’m looking at their most recent 990, from 2019. I wonder what the heck happened? They’d had contributions of $3M-$5M in the three previous years, and revenue plummeted to under $700K in 2019?
They’re still going, so hopefully that 2019 bump was recovered-from. I’ll match your hundy because I’m pissed and needing things to do to feel like I have some agency in this shitshow.
New Deal democrat
@What Have the Romans Ever Done for Us?:
That’s called the doctrine of Judicial Supremacy, and that Constitutionally as history has developed, is what the US has.
In Federalist #78, James Hamilton wrote of how the Court would have very limited power, because it would be circumscribed by increasing constraints of common low and stare decisis (I.e., it would have to abide by the precedent of prior cases), and would not have any power of enforcement.
Hamilton in that essay included a very ineffective rebuttal which basically dodged the question of the question of what would happen once the Court realized it had unconstrained power (viz: ordering the Executive branch what to do).
Turns out there was a specific Anti-Federalist he was responding to, who went by the pen name Brutus (probably in real life a member of the NY state high court). I just read an essay about his criticism, and boy was he correct in predicting that the US Supreme Court would turn into partisan superlegislators (viz: Alito suggesting that the 15th Amendment doesn’t give Congress the power to alter State election procedures).
Here’s the link, and everyone who cares about the issues regarding the Supreme Court should read it, because he was spot on:
https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=2010&context=concomm
oatler
@RaflW:
Very well said.
gene108
@Yarrow:
I’m not surprise this doesn’t get attention.
The whole thing lacks the sort of human interest drama pictures of Afghans handing their babies over a wall to marines does.
It also risks pissing of conservatives, if the media starts bringing on legal experts who question how the law would work regarding enforcement, because the media would then be showing its liberal bias.
Plus, the legality behind it, the Shadow Docket, etc. are complicated and explaining complicated topics so anyone can understand is a skill very, very few people possess.
Yarrow
@JPL: Sure, why not. If a bar can be held liable if they served someone who later drove drunk, why can’t airlines be held responsible for flying people to other states for abortions? Maybe banks or Venmo or whoever could be held responsible for transmitting money for abortions. But certainly the man should be held responsible for getting her pregnant in the first place. She can’t get an abortion if she’s not pregnant.
Almost Retired
I can’t even begin to fathom how pernicious this law is. Bounty-hunting laws aren’t new. California’s PAGA allows private actions on behalf of the State for Labor Code violations. But the plaintiffs in a PAGA action are directly affected: there were victims of workplace labor code violations.
The False Claims Act allows whistleblowers to profit from fraud against the government. The harm to the plaintiff in a False Claims Act is usually less direct, but it’s still there. But abortion vigilantes? There’s no harm to them except to their cramped and misogynistic worldview.
This is fundamentally witch-burning with a legal gloss.
Yarrow
@gene108: I’m surprised there wasn’t a front page post on it here in the last week. Perhaps I missed that. We have tons of lawyers here including at least one law school professor. Perhaps a guest post on how the shadow docket works or how some of these lawsuits people are speculating about might work in reality would be of interest.
mali muso
I’m incandescent with rage. And don’t really have any words. I’m damn glad that my family applied for an immigration pathway to Canada and have options. If that makes me a quitter, so be it. I have a young daughter to think about.
trollhattan
So, uptick in rich Texans taking their daughters on last-minute California vacations? What about the other Texans, that’s two time zones to drive in a pickup truck.
RaflW
@Urza: One TX Dem senator voted yes. He’s in Brownsville, and has a Latino surname. Sucks, but probably reflects the Catholic Hispanic vote there. Passed the Senate 18-12, so 12 D’s NO + 1 D Yes.
The only House Dem to vote yes is in an 81% Hispanic district. Two Dems were absent from the House vote, 64 NOs.
So, in answer, this was largely, but not entirely, GOP-partisan. I’m not sure where pro-choice Hispanic Dems are gonna pop up to run in those primaries. But … maybe? huh.
The Truffle
@WaterGirl: Yup. I think Dems also just need to win more damn elections at all levels.
sab
@Yarrow: There has been some chatter in the comments here about the shadow docket.
Ksmiami
@Feckless: burn it to the fucking ground. The current make up is anti- Democratic
Jim, Foolish Literalist
@The Truffle:
This this this a thousand times every day and in response to just about every political question.
trollhattan
@RaflW:
Guessing the preponderance of Catholicism among the Hispanic population greatly complicates the calculus on this issue for Hispanic Democratic politicians.
JPL
@The Truffle: Yup. It’s difficult though when it becomes harder to vote.
Omnes Omnibus
I am not going to gloss over how pernicious this law is nor how cowardly it was for the majority on the Court to use the shadow docket to try to keep their fingerprints off the whole thing, BUT there are and will be legal challenges to this law. One thing that people can do is support the ACLU and Planned Parenthood of Texas as they fight to overturn this law. The fight isn’t over.
RaflW
As far as news coverage, these sorts of ‘shadow docket’ cases make ignoring/downplaying far too easy for a press that I think doesn’t want to cover abortion news well (I really, frankly think male-dominated news rooms fuck this up out of misogyny and a little squeamishness about a morally complex issue).
Editors will by and large refuse to say “Roe has fallen” because in strict legal terms that’s probably not what happened last night. But functionally, that was a serious turning point. But it’ll get process coverage and some smarmy “Democrats and abortion rights advocates claim that Roe is over” twaffle.
Kathleen
@gene108: Plus they can’t blame Biden and this travesty was carried out by white people so it’s not in their radar. After all one reporter breathlessly provided update to Major biting SS courtesy of info she obtained from Judicial Watch so priorities people.
gvg
@The Truffle: Lifetime appointments is in the constitution, so forget that. The number of justices is NOT in the constitution. We can fix that. Also the amount of work the courts have to do has increased and it really is needed.
Enhanced Voting Techniques
That read like SCOTUS is doing the same old shit as everything else; just tossing out lazy ass shit rather than doing their job.
randy khan
@Yarrow:
Let me say that your email is different than mine. I’ve gotten a bunch about it.
But in the broader picture, you’re right. I think it’s a combination of how the case came to the Supreme Court (it’s really confusing) and that the way the shadow docket makes it hard to know that there’s really something to report.
Mo MacArbie
The supreme court is plainly overworked to have to resort to using the shadow docket for such substantive matters. We must ease their burden by expanding it to 21 justices.
The Truffle
@gvg: Absolutely expand the court. Too bad those are lifetime appointments. That is nuts.
neldob
@Feckless: Trump’s Kavanaugh said as much at his hearing. All that ‘coordinated attack by the left wing in revenge for … Clinton’ and ‘what goes around comes around’. Maybe I will have to help people register and vote in Texas.
Commenting at Balloon Juice since 1937
We’re basically Iran now.