Saturday, April 9, 2022

The Shadow Docket And How Supreme Court Uses It

Chief Justice John Roberts turned heads, when he Criticized how the Supreme Court's Conservatives used the Emergency Docket, referred to by some as the, Shadow Docket. The Shadow Docket is the Emergency Actions taken by the Court, that do Not go through the Full Briefing and Hearing Process of a Formal Opinion.

The Shadow Docket, is an umbrella term that was coined in 2015 by Chicago Law Professor Will Baude, and it Captures all of the Orders and other Miscellaneous Rulings that the Supreme Court hands down every year, other than the High-Profile, High-Visibility Cases, the Cases where the Court hears Oral Arguments, it hands down these Rulings in May and June. It's a reference to the Obscurity and Inscrutability of most of the Court's Orders because by Tradition, those Orders are Unsigned and they're Unexplained, and 99% of the time we don't care.

Since the Term came into even Academic use, we really have seen a Stunning uptick in a particular Type of Shadow Docket Ruling. The Legal Term is it's an "Emergency Application." The better way to explain it is: It's the Court deciding what to do with a Lower Court Ruling while an Appeal Challenging that Ruling Progresses. Appeals take a lot of time, and the question is, while the Appeal is Pending, should we leave the Lower Court Decision in place, whether it Blocked a State or Federal Policy or didn't Block it, or should we actually alter the Status-Quo?

What we've seen over the last Five years, is both a Qualitative and Quantitative uptick in how many of these Emergency Orders the Court is issuing, and in how those Orders are affecting all of us. As recently as 15 years ago, most of the Emergency Orders the Court was issuing were in Death Penalty Cases. Lately though, we're seeing Emergency Orders on everything from OSHA's Vaccination Rule, to the Texas Abortion Ban, to Alabama's Redistricting, and the list goes on and on.

We're seeing the Court do a lot more of this in Orders that affect a lot more People while still hewing to the Older Norms, that they don't Sign these Orders and they don't typically Explain them. The Court is for the First Time treating these Orders as Precedential, meaning that the Supreme Court is expecting Lower Courts to give these Orders effect, not just in the Cases in which they're handed down, but in other Cases raising similar issues. That's a cause for Concern because whatever you think of the merits in these Cases, the Court's Legitimacy depends upon its Ability to offer principled Justifications for what it's doing. Justice Amy Coney Barrett in a Speech at the Ronald Reagan Library said, "For those of you who are concerned that we're partisan and that were playing politics, just read our decisions." Well, on the Shadow Docket, there's Nothing to read.

Historically, the Court's Docket was a matter of frequent and regular Congressional interest. For the first 200 years of the Supreme Court's existence, Congress was regularly involved in Conversations about the Shape and Size of the Court's Docket, which kinds of Cases the Court was Hearing, how much Business it was conducting. But, One of the Diseases of which the Shadow Docket is a symptom, is that Congress has gotten entirely Out of that Business. The last time Congress meaningfully addressed and Reformed the Supreme Court's Jurisdiction was in 1988.

There's always been a Shadow Docket, and weird things have happened. LBJ was able to Steal the 1948 Democratic Senate Primary in Texas, because of a Shadow Docket Order.

What is different about what is happening today is a combination of three things:

- How often this is happening.

- How widespread the Effects of these Rulings are.

- It's the Court's own insistence that these Rulings are Precedential.

The Legal Definition of Precedential. It's relating to, having the character of, or constituting precedent, a Case of No precedential Value has No Precedential effect in this Jurisdiction.

I think many of these Ruling Affects Us, as we are the Jurisdiction.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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