The Supreme Court has been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways
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Adam Liptak has a useful article [gift link] summuziaring the Supreme Court’s run of unreasoned orders permitting Trump to go ahead with actions that are both highly consequential and illegal. At one point, he reminds us of Sam Alito’s defense of the Court’s partisan shadow docket decision-making, which at this point one can only respond “this, but unironically”:
Critics call the emergency docket “the shadow docket,” and its use was on the rise even before it was turbocharged with the arrival of Mr. Trump’s second administration. Justice Elena Kagan used that term in 2021 in criticizing the court’s work.
The majority had just issued a midnight ruling that left in place a Texas law effectively overturning Roe v. Wade in the state — as the court would do nationwide the next year. In dissent, Justice Kagan wrote that “the majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.”
A month later, Justice Samuel A. Alito Jr. returned fire in a speech at Notre Dame defending the court’s approach to emergency applications.
“The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,” he said. “This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution.”
The portrayal is absolutely accurate, and to the extent the court has been damaged as an independent institution it is entirely self-inflicted.
Alito’s attempt to rebut the accurate charges lays bare the bad faith question-begging at the heart of the enterprise:
He compared the court’s procedures to the ones used by emergency medical technicians called to the scene of an accident. “You can’t expect the E.M.T.s and the emergency rooms to do the same thing that a team of physicians and nurses will do when they are handling a matter when time is not of the essence in the same way,” he said.
The analogy is null because in the vast majority of the cases being discussed there is no “emergency,” just the judicial process playing out normally. The Republicans on the Roberts Court want to insist on the term “emergency docket” because they’re trying to sell the idea that “Donald Trump not being able to do all the law-breaking he wants as soon as he wants” is an “emergency,” but nobody should buy it. “Shadow docket” is a catchy term because it’s accurate, and the basis for the label is precisely the use of what used to be the emergency docket to achieve desired policy results without providing any justifications.