The Supreme Court has amassed tremendous power that was not intended by the Founders. The Justices are making epochal decisions that fundamentally shape America, and they do not believe they need to reference any other institution in order to do that.
In The Shadow Docket, Stephen Vladeck, a professor at the University of Texas law school and CNN commentator, indicts the Supreme Court for relying on under-the-radar orders rather than rulings to make new law, thereby eluding public awareness while pushing an unopposed right-wing agenda.
It is so bad that the moderate Justice Sotomayor recently confessed that, “There are days that I’ve come to my office after an announcement of a case, and closed my door and cried.”
Briefly, the Supreme Court is out of control.
It now uses behind-the-scenes “shadow docket,” regularly making decisions that affect millions of Americans without public hearings and without explanation, through cryptic late-night rulings that leave lawyers—and citizens—scrambling.
When the Supreme Court was formed the US population was 3.9-million; today it is 327-million. The numbers of Justices to serve the people has advanced only slowly; a fourth Justice was not added to the Court until 1863, for example.
Congress, which for almost two-hundred years regularly exerted leverage over the Court through lots of ways big and small, has spent the past several decades sitting on the sidelines. And, until a series of reports emerged from ProPublica and other media outlets beginning in April 2022, no one (including the Supreme Court press corps) had noticed that at least some of the justices have long been engaging in personal behavior infected with serious questions of ethical and financial propriety.
Although Congress historically pulled various levers to try to keep the Court in check, it has, of late, gradually disengaged from such a role — resulting in a Court that does not believe it is, or ought to be, beholden to anyone else. Justice Samuel Alito captured this point quite directly in July 2023, telling the Wall Street Journal in an interview that, in his view, “no provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.” Alito is wrong as a matter of both the plain text of the Constitution (Article III, Section 2 literally gives Congress the power to “make…regulations” of the Court’s jurisdiction) and well-settled historical practice, but the fact that this mentality is even in the zeitgeist is a telling reflection of where we are.
The thousands of rulings that the justices hand down each year depart from the written rulings in the five dozen cases on the “merits docket” that still receive multiple rounds of briefing, oral argument, and lengthy, written opinions respecting their disposition. But the merits docket has slowly but steadily shrunk — so that the justices today are handing down written rulings in one-third the total number of disputes as a generation ago, and the fewest number of cases overall since the Civil War.
Indeed, one of the things that we’ve missed in viewing the Court as the sum of those written rulings is that they represent only about 1 percent of the Court’s total output in any given year.
The Court has moved into the literal and proverbial shadows. It now uses these “stealth rulings” to amass power in a way undermines the Republic.
In a Supreme Court ‘silent’ ruling on the Texas six-week abortion ban, for example, a 5 – 4 majority allowed it to go into effect ten months before overruling Roe. It was Justice Kagan’s dissent from the Court’s order in the Texas abortion case that in fact provided the title for this book. The first justice to use the term “shadow docket” in an opinion, Kagan complained that the majority’s thinly defended refusal to block the Texas law was “emblematic of too much of this Court’s shadow-docket decision-making, which every day becomes more unreasoned, inconsistent, and impossible to defend.”
The Court is little more than a vehicle for the exercise of partisan political power. Unsigned , unexplained orders from the Supreme Court handed Republicans five seats — and thus the majority — in the House of Representatives during the 118th Congress.
It has long reached out for ambitious goals. On August 2, 1973, from his summer cottage in Goose Prairie, Washington, Justice William O. Douglas set in motion one of the strangest proceedings. On his own authority, from the middle of nowhere, Douglas had decided to stop an ongoing military operation in Southeast Asia. And he was going to use the Supreme Court’s “shadow docket” to do it.
Although there was an August 15 cutoff, he argued that the bombing until then was still unlawful, because it had not been specifically approved by Congress. Judd sided with Holtzman and agreed to temporarily halt the government’s aerial campaign. His ruling was the first example in American history of a judicial injunction against an ongoing military operation. There hasn’t been a second.
The Justice Department quickly sought relief, and begrudgingly Justice Thurgood Marshall sided with Nixon, and the bombing continued.
It was an early portent of a dramatic uptick in equally troubling behind-the-scenes Supreme Court rulings to come. Those rulings would include even less reasoning than the four contradictory opinions filed by Marshall and Douglas over the first four days of August 1973 — and, increasingly, they would have even more of an impact.
Today, here is what is churning in the Supreme Court:
- Roe was eliminated in a totally partisan and incorrect reading of legality and history. When Biden wins in November, that will be over-turned. It has been an absolutely avoidable nightmare of pain and suffering for hundreds of thousands of women. The big difference between the social unrest of the 1960’s and today, is that today’s public anger is being caused by that one Supreme Court ruling.
- Guns are now more dangerous, with rifles allowed to become machine guns, based on a completely fabricated twisting of technology by Justice Thomas.
- Presidential immunity is on the table, which had actually been settled for Nixon in a way that should be a slam-dunk “NO”. It has taken the Supreme Court more than twice the time to rule on Trump’s immunity—a matter an appeals court comprehensively rejected—than it took to rule on the Nixon case. It is obvious that they are doing Trump’s bidding. The justices are completing decisions at the second-slowest rate since the 1946 term...the delay also suggests that there is something “rotten” within the court.
- Half the women terminating pregnancies now use pills that have ongoing accessibility challenges.
- Limits are in play for the power of federal agencies to regulate air and water pollution, food and health safety, and many more.
- The ability of states to curb social media platforms could be enacted, treating them as if they were utilities.
- A challenge to the tax laws could unravel one-third of the tax code.
- A new rule that would dissolve the Labor Relations Board and cast unions adrift is likely to be before the Court shortly.
In all of these cases the Shadow Docket will play a major role…
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With the first debate only a few days away it will be interesting to see if they 'participate' from the sidelines with any 'Shadow Docket' rulings, before Biden and the 'grifter' address the first question.