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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsSome scary shit from Slate re the Supremes - "The Supreme Court's Most Partisan Decisions Are Flying
The Supreme Courts Most Partisan Decisions Are Flying Under the Radar
Through its shadow docket, the court is quietly shaping the rules around elections, COVID regulations, immigration, and the federal death penalty.
By STEVE VLADECK
AUG 11, 202012:12 PM
https://slate.com/news-and-politics/2020/08/supreme-court-shadow-docket.html
Like clockwork, each June brings the Supreme Court back to the forefront of Americas culture wars, as the justices issue major new opinions that are equal parts significant and divisiveprecipitating a flood of headlines, popular opinion pieces, and longer-form academic responses. This term attracted a flurry of coverage of the courts decisions on abortion, immigration, guns, LGBT discrimination, religion, the presidents financial records, and the separation of powers.
But after the fanfare subsided, the justices have spent the first month of their summer recess handing out an unusually large and divisive number of significant rulings. These rulings are quietly shaping the rules of the upcoming elections, how governments can (and cant) respond to COVID, the resumption of the federal death penalty, and more. But they arent decisions in argued cases left over from last term. Rather, these are decisions on what University of Chicago law professor Will Baude has dubbed the shadow docket.
The courts merits docket includes cases in which the justices first decide to grant review, take full briefing (including from outside parties), hold oral argument, and then deliver lengthy, signed opinions providing the courts reasoning and resolving the case. In contrast, the shadow docket consists almost entirely of summary orders, usually only one sentence long. These orders tend to be based on far less participation from lawyers, far less briefing, and no oral argument. And, in almost every case, they offer virtually no insight into the justices reasoningunless some of them choose to write separately to explain their concurrence or dissent. Indeed, unlike merits cases, we usually dont even know how the justices voted on the shadow docketunless four justices publicly note their dissent (or three, if its an order granting review). For those reasons and others, these orders tend to receive far less scrutiny from the press, the public, and the academyand far less attention and precedential weight from lower courts. Yet there are more than 6,000 cases decided this way each term. Many of these rulings are as unsurprising as they are unimportant. But not all of them.
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 K12 education;
allowed President Donald Trump to finish using military construction funds to complete his controversial border walleven 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 Floridas 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.
Whats more, we know that at least seven of the nine orders in these cases were decided 54. And although its 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 administrations 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.)
snip... much more at the link
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