The shadow docket and judicial imperialism, an ongoing series

The Supreme Court issued two shadow docket orders yesterday. The first say the astonishing return of substantive due process:

In Mirabelli v. Bonta, the conservative justices allowed a district-court injunction to go back into effect during litigation that blocks California schools from preventing parents from being told about their children’s gender presentation, name, or pronouns. The challenged policy requires a student’s consent for a teacher to do so.

A district court had granted class-wide injunctive relief to parents and teachers who objected on free exercise of religion claims and on due process claims — ultimately creating four subclasses. The U.S. Court of Appeals for the Ninth Circuit issued a stay of the injunction while it is considering the state’s appeal.

On Monday, in a relatively extensive per curiam — unsigned — order, the court’s conservatives “vacate[d] the stay with respect to the parents.“

[…]

As to the due process claim, that portion of the order is hypocritical and offensive on multiple grounds.

In her dissent, Kagan addressed why at length.

“Even in recognizing that parental right, the Court cannot quite bring itself to name the legal doctrine—it is, again, substantive due process—that provides the right’s only basis,“ Kagan wound up. “Anyone remotely familiar with recent debates in constitutional law will understand why: Substantive due process has not been of late in the good graces of this Court—and especially of the Members of today’s majority.“

[…]

After raising the court’s decision overturning Roe v. Wade, Kagan quoted Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh attacking substantive due process in the past.

“There are many such statements to choose from in this Court’s recent substantive due process caselaw,” she wrote. Returning to Dobbs, she continued, “Especially given the Court’s last venture into the field, today’s decision cannot but induce a strong sense of whiplash.“

The Court also cites a free exercise claim that continues to ignore what is still theoretically the Court’s controlling precedent in Employment Division v. Smith because it tries to avoid merits rulings wherever possible these days. But as Kagan observes, the free exercise claim is ultimately redundant because the substantive due process claim covers all parents, and it’s quite remarkable to see this line of cases straightforwardly being applied in the light of Dobbs, with no hint that anything has changed. And for Thomas, whose Dobbs concurrence explicitly repudiated the doctrine rather than merely logically implying its invalidity like the majority, to argue that the majority didn’t go far enough in not granting a stay to teachers is remarkable stuff even for Roberts Court standards.

In its second ruling, the Court learned to love intervening in elections and prematurely overruling state courts on matters of state law again:

In Malliotakis v. Williams, the conservative justices blocked a New York state court ruling that found “unlawful vote dilution” of Black and Latino voters in a congressional district — NY-11 — and would have required changes to that district.

The Supreme Court stayed that order in a one-paragraph order of its own on requests that included Rep. Nicole Malliotakis, the Republican representative of NY-11.

Justice Sam Alito wrote a concurring opinion for himself laying out his view that the state court-order was “unadorned racial discrimination” — a move that UCLA Law professor Rick Hasen called “bad news not just for Section 2 of the [Voting Rights Act] at issue in [Louisiana v.] Callais but for more voting protections in the states.“

The Callais case — raising the question of whether the “intentional creation” of a “majority-minority congressional district” is unconstitutional — was reargued on October 15, and the court is yet to issue a decision.

This shadow docket application raises different issues than the Texas and California shadow docket requests, which were part of federal court challenges to mid-decade redistricting. This, on the other hand, was a New York state court ruling about the 2024 congressional map, so the intervention of the court raises its own, unique issues.

Justice Sonia Sotomayor detailed those concerns in her dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson. Beginning, “The Court’s 101-word unexplained order can be summarized in just 7: ‘Rules for thee, but not for me,’“

This represents another application of the PURCELL PRINCIPLE: that is, it is always too close to an election for a court to rule in favor of Democrats, it is never too close to an election for a court to rule in favor of Republicans.

Steve Vladeck, who has much more about both cases, concludes:

Although my critics may not notice, I spend a lot of time defending the Court, at least as an institution. But rulings like these certainly make it harder to do so. If the Court were consistently applying procedural and substantive principles with which I disagreed, that would be one thing. But it’s the inconsistency that, in my view, opens the Court to charges of more than just being wrong on the law.

That inconsistency is not just about which substantive principles the Court applies in which cases; it’s about how the Court acts—and when. Here, the grants of emergency relief seem to reflect impatience on the Republican appointees’ part with the ordinary flow of litigation, which would surely have brought these issues to the justices sooner rather than later.

Maybe one could defend “judicial impatience” as a virtue in the abstract. But the Court can’t (for volume reasons) and doesn’t (for … other … reasons) apply that impatience consistently. And if you’re going to intervene only when that impatience is getting in the way of results you want to reach now, and not in any other cases, well, that’s only going to exacerbate charges that the justices are simply doing what they want, when they want. Whatever else that is, what it ain’t is “law,” at least how I’ve always understood it.

“A mere decade ago,” Kagan observes in her Mirabelli dissent,” “this Court would never have granted relief in this posture. (Indeed, I am confident that the plaintiffs would never have thought to ask, at this stage, for the Court’s involvement.)” As bad as the Roberts Court has always been, obtaining a nearly impregnable supermajority has made it even worse, and it continues to escalte.