The Shadow Docket

When Senator Tim Scott gave the GOP’s rebuttal to President Biden’s address to Congress, one of his complaints was that the President hadn’t re-opened the nation’s schools. He evidently assumed that America’s widespread lack of civic knowledge would obscure the inconvenient fact that Presidents have no authority over public schools.

It’s called federalism, Senator. Look it up.

Speaking of civic knowledge, I have frequently cited a poll from a couple of years ago that found–among other, multiple deficits of civic knowledge–that only 26% of Americans could name the three branches of government. Although the survey didn’t ask the question, I’m reasonably certain that even fewer understand why the Founders opted for separation of powers–or why they wanted to insulate the judicial branch from the wrath of the electorate.

Both the legislative and executive branches are elected, and thus accountable to voters. (We’ll leave for another day’s discussion the gerrymandering and voter suppression tactics that have substantially eroded that accountability. We’re talking theory now.) The federal judiciary wasn’t just unelected, it was appointed subject to Senate confirmation–and once appointed, judges serve for a lifetime. The theory–the hope–was that judges would rule on the basis of their understanding of the Constitution, and would not need to worry about losing their job if that understanding was contrary to the desires of the public.

Right or wrong–and sometimes they would be wrong– those rulings would be based upon the judge’s honest and informed evaluation of the merits of the argument.

Thanks to politicians like Mitch McConnell, that ideal of dispassionate and informed rulings meted out by  judges insulated from partisan pressure has been breached, perhaps irreparably. The arguments about “term limits” for Justices, for adding Justices to the Supreme Court, and for other changes to the federal judiciary are responses to the blatant politicization that has eroded public confidence in and respect for the judicial system. (I’m not a fan of sports analogies, but I’ll suggest one: if an umpire is believed to be “in the pocket” of Team A, fans of Team B aren’t going to respect his calls.)

The ultimate “fix” for the current situation is unclear, but while lawyers, legal scholars and political figures squabble, we have increasing evidence that the current Supreme Court is ignoring precedent in favor of partisan ideology. A recent New York Times op-ed by a law professor from the University of Texas shone a light on the Court’s use of its little-understood “Shadow Docket.”

Late last Friday, the Supreme Court, by a 5-4 vote, issued an emergency injunction blocking California’s Covid-based restrictions on in-home gatherings on the ground that, insofar as they interfere with religious practice, they violate the First Amendment’s free exercise clause.

Reasonable minds will disagree on this new standard for free exercise claims. But a far more glaring problem with the court’s decision is that it wasn’t an appropriate moment to reach it.

Like so many of the justices’ more controversial rulings in the last few years, this one came on the court’s “shadow docket,” and in a context in which the Supreme Court’s own rules supposedly limit relief to cases in which the law is “indisputably clear.”

Whatever else might be said about it, this case, Tandon v. Newsom, didn’t meet that standard. Instead, the justices upended their own First Amendment jurisprudence in the religion sphere, making new law in a way their precedents at least used to say they couldn’t.

The term “shadow docket” was coined to describe that part of the justices’ job that involves summary orders addressing management of the Court’s caseload, rather than decisions on the merits of cases.

But recent years have seen a significant uptick in the volume of “shadow docket” rulings that are resolving matters beyond those issues, especially orders changing the effect of lower-court rulings while they are appealed. Indeed, Friday night’s injunction was at least the 20th time since the court’s term began last October that the justices have issued a shadow docket ruling altering the status quo. And the more substantive work that the justices carry out through such (usually) unsigned and unexplained orders, the more the “shadow docket” raises concerns about the transparency of the court’s decision making, if not the underlying legitimacy of its decisions.

In fact, the author tells us that this ruling was the seventh time since October that the justices have issued an emergency injunction — and that all of them have blocked Covid restrictions in blue states on religious exercise grounds.

If all three of those branches that few Americans can name are “accountable” to partisan passions–if there is no demonstrably impartial arbiter of constitutional disputes–America’s slide toward civil chaos will continue to gather speed.

 

18 thoughts on “The Shadow Docket

  1. What is the solution? What can we, ordinary people, do regarding this? I’m losing hope. We had a flawed census which will result in the GOP taking control again. I don’t think I can live through another 4 years like the Trump 4 years. I can’t spend as much time as I did fighting for Democratic votes either. My retirement thus far, except when Biden won, seems like banging my head against lies and ignorance.

  2. While Tandon vs. Newsom is a victory for those who support religious freedom over public health rules, it is also a victory for those who want unfettered freedom of assembly. I hate to think of what horrors would emerge if the government could regulate who, when and for what reason people outside of your household could gather at your house at your invitation.

  3. It’s rather interesting to observe how the highest court is influenced by the same people who financed an attempted coup against our last presidential election. Furthermore, our IC is lying about the amount of intelligence gathered and why it wasn’t used to prevent the chaos. However, the general masses are receiving the negative consequences via anti-protest laws being passed across the country. Peaceful protestors were arrested in Kentucky during the derby without an explanation of why or who. We do know they were BLM protestors.

    Also, when you look at the countries we control, they are all Neofascists. New Zealand stepped out of the Quad powers only because she is a progressive prime minister. All others are far-right dupes.

    Just an observation as our Secretary of State speaks to European powers about “Russian aggression against Ukraine’s” appointed Neofascist.

    This being World Press Freedom Day, it’s been 10 years since the US/UK has been chasing Julian Assange for exposing our war crimes and violating international human rights as a journalist/publisher. He was also nominated for the Nobel Peace prize for the same trove we’ve been harassing him over and declaring him and his source a spy. Both parties have declared so.

    Meanwhile, the US now ranks 44th internationally for world press freedom. If the watchdogs over the government don’t have any power to restrain the public servants from abusing their power; guess what happens?

    Albert Einstein saw this in 1949, six years before his death. Neither political party poses any opposition to the powers that have created our jurists, military, or federal government. We see an example of this from the lack of inaction over the 1/6 insurrection. Nancy Pelosi’s knee-jerk reaction when asked why she wasn’t going after the elected Republicans who took part — “We need a strong a Republican Party.”

    For appearances only. It’s a reality show produced by Hollywood entertainment companies. The greatest con ever concocted on the global community.

    Happy World Press Freedom Day! LOL

  4. Unfettered freedom of assembly, for whatever reasons, has to be balanced against the responsibility one has as a member of society to prevent a contagious and possibly fatal disease from spreading through the population. If your religious beliefs are sufficiently strong, would not an omnipotent being up there in the clouds know it? Would that being value your communal activities so much that it would value them more than your responsibility to others?

  5. The Founders gave much time and consideration developing the Declaration of Independence and the Constitution of the United States of America to remove us from the tyranny of a monarchy. The separation of powers was a protective measure which lost meaning during the Trump administration. The Judicial branch was brought under the powers of the combined Republican Executive and Legislative branches; the current struggle to return to the separation of powers and the reason for the Judicial branch being removed from the electorate is being lost in the distraction of the continuing denial of results of the 2020 presidential election as Trump keeps his knee on the throat of the GOP.

    “If all three of those branches that few Americans can name are “accountable” to partisan passions–if there is no demonstrably impartial arbiter of constitutional disputes–America’s slide toward civil chaos will continue to gather speed.”

    “When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another,…”; these words should be given as a reminder to those of the Republican party who have forgotten their meaning to inspire them to dissolve their connection to the Trump party. The civil chaos within the party is heading to a return of Trump’s mob rule and our democracy is still endangered by them with the support of the Supreme Court of the United States.

  6. Liz Shopes, There is evidence that the latest census hurts several Red controlled states. Texas, Florida, and Arizona, all with Republican Governors and legislatures, failed to support the census. They allocated token dollars and provided almost zero support to promote the census. Yes, they all gained seats, but estimates are that the there was an under-count of 2-3% in all of those states. The immediate effect is that they would have gained MORE seats if they had a full count.

    There are mixed long term effects. Federal allocations of dollars to those s states will be lower than they should have been for the next 10 years. It is also estimated that undercount occurred in the urban and hispanic population, and that will result in a de facto gerrymandering, by packing in more voters into smaller districts. The democrat voters are still there, so for state wide elections (senators and an state officers), there is no dilution of voting power.

    So Republican fueled problems in the Census might actually work against them in those states, so I would not loose too much sleep over that issue.

  7. There is no such thing as an absolute right. All rights are, and should be, limited. If you think that those rulings are mostly about religion, you may be missing the point. Religion is a handy tool that has been used by the right to diminish government.

  8. Attending Purdue 66 years ago REQUIRED A SMALL POX VACCINATION. Remember no religious complaints, some moaned about the pain(suck it up buttercup). The two major religious groups within the USA and a third from the middle East(oil was raising it’s smelly head) whose male students were attending an engineering school never spoke to some specious religious violation. The military of that time and prior required small pox vaccinations. We waited in lines to get our polio vaccines. 100% of us feared being crippled for life. Were we smarter or better educated or were we just using common sense? Yes, too many of us smoked like chimneys, but virtually all of us regardless of social/political/educational standing understood the value of these vaccines. In today’s USA society, we accept 600,000 deaths in one year reasonable while rejecting minor social avoidance as unreasonable. Good luck youngsters.

  9. Dan Mullendore; the census form I received last year only asked my basic information and questions about the races of who else lived at my address. The first one asked me to list all Hispanics who lived at my address, the second question asked me to list all Hispanics living at my address not listed in the first question. Then 10 questions as to race and ethic origin of 10 others living at my address. In past years, I have had to start and stop to answer all questions on the census form because of the information and time required to answer them fully. Living alone; it took less than 5 minutes to answer questions pertaining to myself and have the form ready for mail pickup the next day.

  10. Dan, JoAnn,

    Speaking of the census takers, last summer, I was outside my father-in-law’s house, pulling the trash containers back from the street.

    A census taker had pulled up and parked on the side street and was looking at maps spread out on the hood of his car. She had a census taker badge, and asked me if I knew this particular family. I said, Yes! They live two doors down. So as he walked down the street, I kind of walked parallel to him on the other side. Then, he said oh I forgot to put my identification placard on my windshield.

    I told him I was going back to give my father-in-law lunch I’ll put the placard on his windshield for him, he went into some huge disjointed diatribe about quick acting so nice and what was my motive? It caught me by surprise! I said I was just being neighborly, since he was already to where he needed to be, I had to go back I would save them a trip. Then, he asked me to mind my own business, LOL!

    Needless to say, even though I’ve been trying to rein in my anger issues to people who are disrespectful, I told him that if he had that attitude at some of the houses in the neighborhood there, they’d be calling for an ambulance and a body bag! Then, he said he was armed and not worried about it! Now, I’m well aware that census takers are not supposed to have weapons. So, I called the city and gave them the information, and, from what I understood, it didn’t turn out well for him.

    So, when you have individuals like this working for the census, how are we sure they are recording everything accurately? I guarantee, there are plenty of shenanigans going on in the census bureau, and, their absolute final numbers should be taken with a grain of salt.

    But, to the bigger thing, the shadow docket, yes, the Supreme Court as presently constituted, is the crazy train packed full of passengers with no knowledge of government.

    Individuals like Tim Scott, Sen. from South Carolina, are aware of the ignorance level of those folks listening to the stupidity. They used to roil about dumbing down the population, I believe it was projection because that’s exactly what they were doing themselves. That was Trump’s MO, on steroids!

    Things haven’t changed since the election, and, it’s going to take very unpleasant and drastic action to reverse the unpleasant drastic action by the GOP.

    Everyone was worried about Trump declaring martial law, and, I believe he was real close to doing it, but to clean up this mess in the midst of extreme opposition, this current administration is probably going to have to do that very thing! A lot of folks don’t think that’s a good idea, but what is the best of all bad situations? If, things are not repaired, and, the infectious gangrenous rot is not cut out, the body will die! So, do you trust these folks who everyone put their trust in? Was it all just words OR making the best of a flawed and broken situation?

    I don’t think there’s much trust, and Todd brings up some very good points, although I don’t look at Julian Assange some sort of counterculture hero, because, the man was definitely a co-conspirator to those who were breaking the law. But, I suppose one man’s whistleblower is another man’s criminal. The rest, Todd makes a lot of sense. By the way, I have to say that or he’ll be mad at me, LOL! Just kidding Todd.

    There are decisions that have to be made, these next couple of years will be make or break for this country as a whole, neo-fascism, or democracy! You can see how true democratic values can work during a crisis, as Todd brought out, New Zealand, and, we can see how authoritarians and strongmen promote unmitigated misery and death during a crisis! Seems easy, the decision should be easy to do what it takes to reverse course right now, but the stupidity level from years of propaganda have been boring into the brains of its disciples like a Star Trek earwig!

    My great grandmother used to make something called KOC,(kill or cure) garlic, ginger, horseradish root, whole lemons, and raw honey! This kept everyone who took it alive,(if it didn’t kill you) during the Spanish influenza outbreak.

    There needs to be a good dose of political KOC, because of a doesn’t kill, it will cure! That’s the executive branch martial law.

  11. Senator Tim Scott is typical of today’s Reactionary GOP. No need for facts, just throw some manure against the wall and hope it sticks. The Reactionary GOP base eats it up.

    The Democrats need to demonstrate in the most demonstrative manner the Reactionary GOP has No Plans and No Policies to help the commons.

    Tax the Churches, etc.

  12. “The arguments about “term limits” for Justices, for adding Justices to the Supreme Court, and for other changes to the federal judiciary are responses to the blatant politicization that has eroded public confidence in and respect for the judicial system.”

    But aren’t liberals the ones most responsible for the politicization of the courts and particularly the U.S. Supreme Court? They have been the ones that have long pushed the idea that judges should play a leading role in writing into our law certain favored policies, even when legislatures weren’t willing to adopt those same policies through the democratic process In advocating judges be active policy makers instead of umpires calling balls and strikes, liberals have said there is no need for judges to be tied in their rulings to the actual words of the constitution/law or to the history as to what was intended by those provisions.

    Now conservatives want their judges to use their authority on the bench not to call balls and strikes as an unbiased umpire, but to push conservative policies. They don’t want their judges to be tied to strict constructionist judicial principles either. Liberals should have been able to see this coming. Conservatives got their playbook and are now running the liberals’ play when it comes to the judiciary. We’ve gone through conservative activist periods before so this should not come as a surprise.

    I would also say the Dems were the first to politicize the judicial confirmation process, starting with Robert Bork, who could not have been more qualified.

    As far as the charges of “court-packing,” the Republicans only filled positions as they came open. Sure there was huge hypocrisy on how they treated the Garland appointment versus Amy Coney Barrett’s. But I’m not so sure the Ds wouldn’t have done the same thing if the situation were reversed. The Ds are quite capable of political moves that are simple about increasing its power. Witness the push to make D.C. a state, which is simply about adding 2 Democratic Senators. I’m 100% in favor of DC residents having a vote in Congress (I never understood why it was carved out), but retrocession of DC’s neighborhoods to Maryland is the obvious way of fixing that, not creating a fiction that modestly sized city qualifies as a state.

  13. Paul K. Ogden; the years with McConnell in control of the Senate during President Obama’s administration ignored and refused to hold hearings on hundreds of federal judgeships. Under Trump’s misguided guidance the situation during hearings by his Republicans and the TWO impeachments were questionable, insulting and we all knew the outcome before the first question was asked.

    “As far as the charges of “court-packing,” the Republicans only filled positions as they came open.” This statement copied and pasted from your comments make me question your long and short-term memory abilities.

  14. Freedom of religion is supposed to provide equal protection for all faiths, including the acceptance of any belief in a Supreme Being or books of rules regulating life. The only way that can be fulfilled is to make no legal decision based on any particular religion including the total absence of it.

    That’s why it was problematic for Amy Coney Barrett to be appointed to the Supreme Court (which replaces the concept of the Supreme Being for those of us who believe that science explains life) by a President never elected by a majority of voting Americans. She can’t be true to her religion which demands evangelicalism and simply ignore all religion including the absence of it. Being Supreme is in conflict with who she is.

    It’s not clear to me though what the influence is that any particular justice has on the “shadow docket”. Can anyone explain that for me?

  15. Paul,

    Does land denote statehood? Washington DC has a larger population than Vermont or Wyoming. So, is land or population the overriding factor in statehood?

    The DC motto, “Taxation Without Representation” is a serious issue that led to the Boston tea party for that matter. Is it as simple as Retrocession?

    That in itself creates problems because it dilutes the opinions and identity of DC’s voters. That in itself is something that the GOP has been doing with gerrymandering. Of course gerrymandering was engaged in by both sides, the GOP gerrymandering has been fueled by partisan steroids! With the sole purpose of refusing to give individuals fair and accurate representation in their districts!

  16. Pete, Believe six members of SC are Roman Catholic: Roberts, Sotomayer, Thomas, Kavanaugh, Alito and Barrett.

  17. So such gathering activities are enjoined by the court “to the extent they affect religion?” O.K., I don’t believe in stop signs. Shall we require that state’s traffic engineers be enjoined from setting them? How far does this fragmentation of the public will go under the pretext of religious belief? We elected Biden, not Falwell.

    Yes, we need three new justices, and perhaps four, lest we suffer judicial overreach and return to Charlemagne and the days of the Holy Roman Empire, which Voltaire correctly noted, “was neither Holy, Roman, nor and Empire.” So what’s next if some state or other political subdivision decides to tax churches? Will the court enjoin such practice on grounds that such a practice “affects religion?” This ruling added to the court’s recent selelective application of the doctrine of stare decisis when added to mobs in the capitol amount to a new attempt to destroy our democracy, but we are still in the majority and far from powerless, so let’s rule.

  18. I suspect that the Supreme Court, in tried and true situational ideological fashion, will flip if, say, the Peace Churches go to the Court to argue for the religious freedom NOT to pay war taxes (as determined by the Peace Churches) and I suspect the Supreme Court will flip its commitment to “freedom of assembly” whenever it ideologically suits their political needs. The five conservative Catholics on the Court are not libertarians or civil libertarians they are theocrats in the sense that it is our political and ideological way or the highway.

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