The Supreme Court Is Hiding Important Decisions From You
The Supreme Court Is Hiding Important Decisions From You
A new book argues the court is undermining its credibility by rendering so many unsigned and unexplained decisions on its so-called shadow docket.
By IAN WARD
05/19/2023 04:30 AM EDT
Ian Ward is a contributing writer for POLITICO Magazine.
As the Supreme Court begins to release its written opinions from its most recent term, much of the publics attention is focused on high-profile cases on affirmative action, election law and environmental regulation. But according to Stephen Vladeck, a professor at the University of Texas Law School, this narrow focus on the most headline-grabbing decisions overlooks a more troubling change in the High Courts behavior: The justices are conducting more and more of the courts most important business out of the public eye, through a procedural mechanism known as the shadow docket.
Quantitatively speaking, cases arising from the shadow docket which include everything apart from the courts annual average of 60 to 70 signed decisions have long made up a majority of the justices work. But as Vladeck documents in his new book, The Shadow Docket, published this week, the courts use of the shadow docket changed dramatically during the Trump years, when the courts conservative majority used a flurry of emergency orders unsigned, unexplained and frequently released in the middle of the night to greenlight some of the Trump administrations most controversial policies. ... Whats remarkable is that the court repeatedly acquiesced and acquiesced [to the Trump administration], and almost always without any explanation, Vladeck said when I spoke with him. And they did it in ways that marked a pretty sharp break from how the court would have handled those applications in the past.
It wasnt just the frequency of the courts shadow docket decisions that changed during the Trump years; it was also the scope of those decisions. Whereas the justices have traditionally used emergency orders as temporary measures to pause a case until they can rule on its merits, the current court has increasingly used emergency orders to alter the basic contours of election law, immigration policy, religious liberty protections and abortion rights all without an extended explanation or legal justification. To illustrate this shift, Vladeck points to the courts emergency order in September 2021 that allowed Texass six-week abortion ban to take effect a move that effectively undermined Roe v. Wade nine months before the court officially overturned it in Dobbs v. Jackson Womens Health Organization.
It really highlights a problem thats endemic to how we talk about the court, which is that we fixate on the formality of the courts decision and explanations and downplay the practical effect of its rulings, whether or not they come with those explanations, Vladeck explained.
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no_hypocrisy
(46,095 posts)for precedent. They choose a response and cant/wont justify it.
My only solace is shadow docket decisions will be overturned by a new slate of justices.
calimary
(81,239 posts)Theyd be out n proud with these rulings if they thought those rulings were popular.
DownriverDem
(6,228 posts)find out, they'll let us know.
liberalla
(9,247 posts)ancianita
(36,053 posts)Beartracks
(12,809 posts)... was, as so many other complaints from the right, an *admission* far more than it was ever a real *accusation.*
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FakeNoose
(32,638 posts)There has to be a way to nullify this court and its skeevy activities. Let's set the clock back about 25 years and do it all over. Get all new - completely qualified - Supremes and revise every single one of these questionable rulings.
NullTuples
(6,017 posts)housecat
(3,121 posts)If more than nine qualify, look at their law school transcripts. If that doesn't help just flip a coin.
WestMichRad
(1,321 posts)This topic needs more attention, IMHO