Tag: supreme-court

The Supreme Court and the Shadow Docket

Introduction

In the past months the media has occasionally mentioned the Supreme Court and its Shadow Docket.  This tool has become important to the Trump administration as it attempts to deal with lower court decisions that hamper the President’s agenda.  Examples include the deployment of federal troops to support ICE operations, and the court ordered payments for the SNAP program.

The Merit Docket

The Supreme Court has used two approaches to hearing cases.  The first is the merit docket.  This traditional docket involves a Court review to determine on merit the 60 to 70 cases that the Court will consider during any given year.  In making this decision, the Court hears briefs and holds oral arguments.  If the case is heard, the Court then issues its opinion explaining its reasoning, usually with dissents and concurrences.  The process involved transparency and shows informed decision-making.

The Shadow Docket

The second track is the shadow docket. The traditional view of the shadow docket is simple.  The Supreme Court rules on procedural matters such as scheduling and injunctions.   Most of the time these cases, as noted above, deal with due dates for briefs, or a request to halt a lower court’s orders.  These cases are not under intensive review and do not require oral arguments.  Generally, the decisions have no explanation and often lead to questions about the rationale for the decision.  As noted by Stephen Vladeck in his testimony before Congress, “Owing to their unpredictable time, their lack of transparency, and their usual inscrutability, these ruling come both literally and figurative in the shadows.”

The Growing Problem with the Shadow Docket

The term “shadow docket” was first used by University of Chicago law professor Will Baude in 2015.  He used it to refer to the docket of work at the Supreme Court that almost no one noticed.  This work consists of thousands of decisions usually handed down as an “order” by a single judge, usually the Circuit Judge for a particular district.  Sometimes, the order reflects the opinion of the entire Court.  Of course, routine decisions can be made without all of the justices hearing all the arguments.  The current issue is that the justices are sometimes granting relief in contentious cases.  The problem is that cases which had been determined as significant are now being decided in the “shadows.”

Significant Issues Decided or Blocked by the Shadow Docket

The shadow docket decisions have included gerrymandering, environmental regulations, and abortion.  And in many cases, the administration has filed an emergency motion where the administration seeks to suspend or reverse lower court decisions, even while the case is ongoing!  Emergency actions are supposed to be rare.  They are considered by the Supreme Court when the lower court ruling could cause irreparable harm.  Justice Elena Kaga has said that the court has gone “astra” making the “Court’s emergency docket not for emergencies at all …… only another place for merits determination—except made without full briefing and argument.”

Why is This Change a Problem?

Use of the shadow docket process runs against the historic record of transparency and rule of law generally associated with the Supreme Court.  The Court has historically allowed the lower courts to establish facts and make determinations on cases.  The Court then receives full briefings on the lower court case, holds oral arguments from both sides of the issue, and decides on an outcome, providing details of the decision-making process (including dissenting and supporting opinions).   This process has been the backbone of the Court’s legitimacy with the American people.

It is no wonder that the American public is beginning to question the Court’s objectivity.  Shadow docket decisions do not have the transparent look of the merit docket.  Decisions are being rendered with little or no reasoning given.  This has fed the believe that the Court has become more political in its decision making. 

In addition, the concept of case law, which has guided lower courts in their decision making, has become difficult to follow.  Federal judges often cannot agree on what weight to give shadow docket decisions.  This has played out in the confusion over Trump’s immigration policies and his use of the military to support ICE.

The Consequences

District Judges are not only having problems applying case law or knowing the Supreme Court’s message, but they are also resigning out of frustration.  One example is Judge Mark Wolf, U.S. District Judge for the Massachusetts District, who has resigned after many years on the bench.  He has expressed his frustration with the erosion of prosecutorial independence, attacks on the Constitution, and rule of law by the current administration.  Wolf was appointed by President Reagan in 1989 and was a major jurist in the Watergate Affair. 

Conclusion

The shadow docket is likely being misused as a matter of political expedience.  It is up to the Justices to reign in this practice and recognize that matters which the administration views as emergencies should be allowed to play out through the normal appeals process.

Where is the Pushback?

Where’s the pushback from Congress in response to President Donald Trump’s defiance of the courts and disregard for the Constitution?  While actual Republican pushback has come from Elizabeth Chaney and Adam Kinzinger, and a few active Senators, most elected senators and representatives in both parties appear to have little appetite for pushback.  Democrats, where are your leaders?  OAC, Pete Buttigieg, a few others, and independent Bernie Sanders should be supported by more of you.  Where are the real Republicans?  Your party has been taken over by Trump supporters.  The executive power that Trump claims is not real.  His “MANDATE” is far from a mandate.  A full 36 percent of eligible voters did not cast a ballot.  That is a larger percentage than either Trump or Harris received.  Push back!! Don’t let the judicial branch attempt to carry the load!  Trump’s actions are not something new.  Consider Andrew Jackson, known as the people’s president, and the pushback from his political opponents.

In 1834, Henry Clay led a revolt against President Andrew Jackson.  President Jackson had started defying court directives and Congress.  In 1832, Jackson defied Chief Justice John Marshall in the case of Worcester v. Georgia.  In this case the state of Georgia attempted to impose laws on the Cherokee Nation.  The Court upheld the sovereignty of the Cherokees.  Jackson did not like the decision and refused to accept its directive.  Most often Jackson is quoted as saying, “Jon Marshall has made his decision; now let him enforce it!”  Jackson personal stance was part of his broader Indian policy which eventually led to the Trail of Tears. 

Then in 1834, Jackson opposed the Second Bank of the United States as presented by Congress.  Jackson viewed the bank as unconstitutional and corrupt, favoring state banks and a decentralized financial system. His stance led to the infamous “Bank War,” where he vetoed the renewal of the Bank of the United States’ charter and redirected federal funds to state banks, often called “pet banks.” Jackson claimed that as president he could judge the constitutionality of a central bank, ignoring the 1819 Supreme Court ruling in McCulloch v. Maryland, which held that the Bank of the United States was legal. This was a defining moment of his presidency.  Senator Henry Clay viewed Jackson’s actions as outside his executive authority.  Clay moved to have Jackson censored by Congress.  In 1834 the Senate formally censured Jackson.  In 1837 the Senate, now dominated by Jackson supporters, voted to remove the censure from the Senate record.  Although Clay’s efforts failed, his argument helped shape limits on executive powers.  Jackson’s personal beliefs regarding the central bank are the likely cause of the Panic of 1837, our first major depression.

Where is the Henry Clay or Daniel Webster of our generation?  Webster said, “I am committed… to the Constitution of the country…. And I am committed against everything, which, in my judgment, may weaken, endanger, or destroy it…; and especially against all extension of Executive power; and I am committed against any attempt to rule the free people of this country by the power and the patronage of the government itself.” Which Senators today will protect the separation of powers as enshrined in our Constitution?