It’s way to early to go believing a significant change is underway with SCOTUS but there’s a hopeful sign the six conservatives are growing tired of Trump’s abuse of what’s known as the Shadow Docket. Presidents don’t like it when courts step in and limit the scope of Executive Orders and certain other actions. Trump isn’t the first one to immediately run to SCOTUS for a quick ruling (hoping they’ll side with him) but he’s abused the process far more than any predecessor. More often than not in the rash of Shadow Docket requests and rulings the six conservative GOP appointees have sided with Trump. However recent indications are they think they might have been giving him too much leeway.
Justice Ketanji Brown Jackson has been outspoken since the get-go. For her there was no breaking-in period of keeping her head down and quietly establishing herself. SCOTUS has a history of being famously opaque, with members saying that while their discussions are lively everyone remains friends. I think at one time that was mostly true but during Roberts’ time as Chief Justice the dynamic has changed. Fierce PUBLIC criticism amongst Justices used to be mostly limited to written decisions. However more have while appearing at law school forums or other functions been more willing to take each other on. Jackson has I believed changed the dynamic and done so in a way Roberts can’t contain. She has flat-out engaged of public shaming of others on the Court. I for one think it’s about damned time.
Roberts can deny it all he wants but under his leadership the Court has become overtly political with a clear conservative lean. If it’s going to act like a political instead of a legal institution then it’s fair for it to be treated as such and in the process be more open about how it goes about its business. From where I sit if it takes repeated public shaming for Roberts to move the Court back to the proper, regular way of doing things then fine. If he doesn’t like it he can suck it. More importantly though is that there are signs Roberts has gotten increasingly thin skinned over the reputation of the ‘Roberts Court’ which had seen a clear decline in the public’s trust. Because there’s been too much sucking up to Trump.
There are recent signs SCOTUS is getting fed up with Trump using them like he uses the DOJ. As in his personal law firm/legal team tasked with putting a shine on the Bondi/DOJ turd. SCOTUS clipping his Tariff wings was startling to us all but Trump? He was (and remains) livid. In his mind they are by god HIS Justices and he did after all pick three of them during his first term. For the always transactional Trump that means he ‘owns’ them and they have to do what he wants. Add in Thomas and Alito who would hand over women they love to be gang raped by terrorists in the middle east rather than tell a Republican President NO and it’s easy to see why Trump expects SCOTUS to do his bidding.
However Trump was out of office for four years and Biden got to appoint a Justice and Ketanji Brown Jackson has upset the order of things. She hit the ground running and both around the office and in written opinions has called out the Court in more than one way. One of them has been Trump’s abuse of the Shadow Docket and as Alternet reports she might have been slowly shaming SCOTUS conservatives into being actual conservatives with some respect for the rule of law again.
Slate Senior Editor Dahlia Lithwick and legal writer Mark Stern say there may be a reckoning underway among the conservative majority of the U.S. Supreme Court.
The U.S. Supreme Court on Monday temporarily blocked the Trump administration from moving forward with plans to deport roughly 6,000 Syrians and 350,000 Haitians who were granted Temporary Protected Status (TPS) by Presidents Obama, Biden, and Trump himself in his first administration, which is a contradiction to conservatives’ apparent eagerness to give President Donald Trump his way on the shadow docket while the case plays itself out in court.
The article notes Stern saying this was the right decision – federal statute “does not allow the secretary of homeland security to prematurely end a TPS designation before it expires.” That of course is an important point to make but Alternet pulls back the lens to take a wider look at things and offers a tantalizing, if still only a hopeful once that change might be in the works:
But, more directly, the court’s decision not to quietly give Trump his way as the case plays out “reflects that maybe the court could be conceding” to liberal Ketanji Brown Jackson’s arguments in past dissents when the court allowed Trump to do things like fire protected federal employees before a court decision was made.
In past dissents, Jackson argued that cases must also be considered on the base of who faces irreparable harm, and that immigrants are the ones who face irreparable injury and grievous harm if TPS is stripped, while the Trump administration couldn’t point to one single hardship it would face by keeping TPS in place for a few months.
“The previous two times around, the rest of the court — or at least the conservative justices — pretty much ignored her. But maybe this time they listened because they did exactly what she had counseled, which was to keep TPS in place and set this case for arguments and decision the right way so everybody’s claims will be deliberated on property,” said Stern.
I’m pretty sure there’s a typo in that last sentence and the word “property” is supposed to be “properly” which brings me to a point I want to emphasize. Even if you aren’t into legal stuff or SCOTUS I highly recommend reading the full linked article. It includes a marvelous recounting of Justices Jackson and Kavanaugh debating the shadow docket and how things were twenty years ago when they were humble clerks for SCOTUS Justices. However the real problem which I hope this time next year will see Senate Judiciary Chairman Sheldon Whitehouse educating the public on is the damage that’s been done by Chief Justice Roberts allowing Trump’s abuse of the shadow docket. Once upon a time, in the early years of his tenure Roberts was known, and even criticized for influencing the Court to reduce its workload. To hear fewer cases.
That seems to have gone by the wayside, or perhaps it’s a matter of Roberts only partially reducing SCOTUS’ workload by the fast and dirty shadow docket approach to SCOTUS jurisprudence. For those who don’t follow legal stuff the way SCOTUS is supposed to and used to normally work is that federal appellate rulings might have one side or the other petition them for a Writ of Certiorari, a request to hear a case. The Justices get way more requests than they have time to handle. Clerks sort through the more compelling cases and each week during a conference they look at cases and decide which ones merit a hearing before them.
It takes only four Justices voting to ‘Grant Cert’ for them to take up a case. In the normal course of things the Justices collect legal filings and briefs, hear oral arguments, get subsequent filings and briefs and render a decision. A Justice is selected to draft the opinion but others are free to draft their own consenting or dissenting opinions. Eventually after everyone has had a chance to either have their input incorporated into the majority opinion and/or consenting and dissenting opinions have been drafted the decision is released. (And the inevitable debate about what they got right or wrong begins)
It can take years before a case is even presented to the Justices for consideration on whether to grant cert. When they do it can take up to over a year before a decision is rendered. For example we are well into the current term and the ability to follow the normal process including oral arguments might have to wait until the next term. Sometimes, in what are only supposed to be emergencies where great harm can take place to a litigant(s) the Court will skip ‘regular procedure’ and take up a case immediately. This is the process known as the Shadow Docket. When cases are decided under the Shadow Docket it’s a matter of them looking at each side’s legal filings and any so-called friend of the court briefs they want to take a look at. Most of the time a ruling comes pretty quickly but no actual opinion laying out case law and the merits or lack thereof of one side or the other is published. Also, usually the ruling for or against say a President is a simple statement from the Clerk and unsigned by any Justice(s).
Trump has used and abused the shadow docket more than any other President and by a considerable margin. Well, he is after all Trump and in his mind anything less than total agreement and obedience by anyone, even a federal judge or a group of appellate judges (including ones he appointed) constitutes an EMRGENCY! So he goes running to SCOTUS, the same one that gave him sweeping immunity from prosecution. Like I said they have usually been good little sycophants and have given him what he wants.
Again, I won’t go so far as to say I’m actually hopeful Justice Jackson has shamed the conservative ‘Seditious Six’ into going back to doing things the regular way. I do however see the prospect that Roberts, who once had dreams of a legacy extolling the “Roberts Court” thinking about what he has wrought. And, more importantly turn the not Good Ship Shadow Docket around and return it to port.
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The sooner the court is expanded to 13 members, (to match the number of court districts), the better.
It must be one of the first things the new Democratic administration does – and would be straight-forward under current law- and easy to achieve.
Then all the impeachments could start without risk of being reversed.