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The Shadow Docket

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Excellent piece by Steve Vladeck on how the Roberts Court — and in the vast majority of cases this means its five Republican nominees — are using stay orders to reshape the law without the need to even justify itself:

As the last month has driven home, the lack of attention distorts not only the public perception of the court but also our understanding of the ways in which the justices’ “shadow docket” rulings can affect our lives. Just since the beginning of July, the justices have issued rulings on the “shadow docket” that

• cleared the way for the first three federal executions in 17 years after lower courts had repeatedly halted them;
• refused to disturb a Nevada COVID-related emergency order that treated churches more harshly than casinos;
• blocked a grassroots effort in Idaho to increase funding for K–12 education;
• allowed President Donald Trump to finish using military construction funds to complete his controversial border wall—even though every lower court to consider the issue has ruled that such repurposing of funds is unlawful;
• pushed back resolution of a dispute between the House of Representatives and the Justice Department over the Mueller report in a way that will ensure that the Justice Department prevails;
• prevented potentially hundreds of thousands of eligible voters in Florida from voting this November by refusing to freeze Florida’s “pay to vote” law, which requires felons to clear any claimed outstanding judgments before voting, and which the lower court had struck down as flagrantly unconstitutional; and
• froze a district court order that had required an Orange County jail to take measures its own policies already required to protect inmates from an outbreak of COVID-19.

What’s more, we know that at least seven of the nine orders in these cases were decided 5–4. And although it’s hard to account for every ruling on the shadow docket, two slices of the data underscore the uptick in both the frequency of such rulings and their divisiveness: First, in the Trump administration’s 3½ years in office, the justices have granted (in whole or in part) 22 stay requests from the federal government (including 10 during the current term alone)—compared with a total of four grants of such requests in the 16 years of the George W. Bush and Obama administrations combined. (Trump has submitted 34 applications, versus 16 from Bush and Obama combined.)

Second, the shadow docket is quickly crowding out the merits docket. During the October 2017 term (Justice Anthony Kennedy’s last on the court), only two stay applications provoked four justices to publicly note their dissents. In the not quite two terms since, there have been 20 separate orders from which four justices publicly dissented—including 11 so far this term (and six since the beginning of July). By contrast, there were only 12 merits decisions during the current term that split the court 5–4 (the SCOTUSblog list of 14 includes two “shadow docket” rulings). With two months to go, it seems likely that the shadow docket will produce more 5–4 splits than the merits docket—for the first time, well, ever.

John Roberts’s “minimalism” has never been about judicial modesty; it’s always been about trying to shield the Court from democratic accountability as much as possible.

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