The Supreme Court's Most Partisan Decisions Are Flying Under the Radar

[JudyM]

... 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 can’t) respond to COVID, the resumption of the federal death penalty, and more. But they aren’t 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 court’s “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 court’s 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’ reasoning—unless some of them choose to write separately to explain their concurrence or dissent. Indeed, unlike merits cases, we usually don’t even know how the justices voted on the shadow docket—unless four justices publicly note their dissent (or three, if it’s an order granting review). For those reasons and others, these orders tend to receive far less scrutiny from the press, the public, and the academy—and 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 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.
...

Whatever one’s views, this uptick is worthy of far more attention. Among other things, these rulings put the justices in the position of deciding weighty legal issues at a very early stage of litigation, in a context in which it is often unclear exactly what the relevant facts are and in which legal arguments have not been fully developed. The justices are fond of insisting that theirs is a “court of review, not first view,” except, apparently, in these cases. In the process, these disputes consume significant time and energy at the expense of the court’s “merits” cases, which dropped to their lowest total this term (with 52 cases) since … 1862. And in their impact, the justices’ rulings to date reveal three problematic trends: Republican federal and state government parties fare far better than their Democratic counterparts; the impact these orders have upon the public has disappeared from the legal analysis; and the justices are even more sharply partisan in these cases than in those that receive more attention.

https://slate.com/news-and-politics/2020/08/supreme-court-shadow-docket.html

[BamaRefugee]

1. But..but..but...John Roberts is the new progressive heartthrob, RIGHT?

Outwitting trump at every turn, according to legend.

[JudyM]

3. Here's hoping our government in 2021 has the votes and the focus to deal with preventing

what we’ve witnessed from happening again.