Justice Roberts' criticism of 'shadow docket' underscores the problem

Group photo at the Supreme Court in Washington
Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch, Associate Justice Amy Coney Barrett, Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor pose for a group photo at the Supreme Court in Washington, U.S., April 23, 2021. Erin Schaff/Pool via REUTERS

April 8 (Reuters) - U.S. Supreme Court Justice John Roberts joined liberal members of the court for the first time on Wednesday in a substantive critique -- a disapproval, even -- of how his conservative colleagues have been abusing the court’s emergency docket, better known in recent years as the shadow docket.

It’s a noteworthy admission by the chief justice.

The court in a 5-4 ruling revived a Trump-era rule that limits states’ and Native American tribes’ power over big energy projects that may pollute their waterways and land.

The rule had overturned nearly 50-year-old interpretations of the Clean Water Act. A coalition including 19 states and Washington, D.C., opposed the new interpretation, with industry trade groups and eight Republican-led states on the other side. The court heard no arguments, and the majority never explained why they took up the case, nor why they ruled how they did.

Justice Elena Kagan wrote in dissent that her colleagues granted “emergency” relief even though the red states and fossil fuel groups waited a month after the rule was blocked by a lower court before petitioning the Supreme Court, and have “not identified a single project” that would be seriously affected before the appeals process in the lower courts can conclude.

“That renders the Court’s emergency docket not for emergencies at all,” Kagan said. “The docket becomes only another place for merits determinations – except made without full briefing and argument.”

There’s broad recognition in the Democratic party, news media, and among legal academics and commentators that the court has been increasingly relying on its shadow docket to decide issues of national importance and public debate, apparently on ideological grounds.

Recent shadow docket orders have permitted bans on abortion, allowed evictions during the ongoing global pandemic, and required asylum seekers to stay in Mexico awaiting hearings, for example.

Analysis has shown that almost all of the decisions have indeed been split along conventional political lines, liberal appointees on one side and conservatives on the other (although it’s sometimes difficult to discern even basic information, like how each justice voted, in shadow docket cases).

And, by now, it’s fairly plain to see that the decisions have consistently favored views on the conservative or ultra-conservative end of the political spectrum.

That explains why several conservative justices have been publicly arguing recently that they are not a dangerous, ideological "cabal," deciding "important issues in a novel, secretive, improper way" – in Justice Samuel Alito’s words.

And, that’s precisely why it matters that the Republican-appointed chief justice has now joined the court’s liberals in holding that the conservatives approach to an emergency request was indeed inappropriate -- in effect, a furtive means of deciding an important question of law.

At this point, vanishingly few institutional actors continue to maintain that the court’s recent approach to its emergency docket is appropriate, save for the conservative justices implicated in the critiques and Republican lawmakers who put some of them on the court.

And what are their arguments?

The “silliest, most annoying” criticism is that the court issues emergency decisions late at night to avoid attention, Alito said in September 2021. The odd timing can be attributed to deadlines, he explained.

Some of those late-night emergency decisions came in death penalty cases.

The justices overturned lower courts that had put prisoner executions on hold at least eight times between July 2020 and January 2021, clearing the way for a record-setting number of executions in the waning days of the Trump administration.

Ruth Friedman, a federal public defender in Maryland who handles capital litigation, told me her sense is that the court acts as it does in those cases for reasons “beyond” avoiding scrutiny, but she did not discount that ideology is at play.

“I am afraid there is an attitude that death row prisoners are somehow ‘gaming the system’” by asking the court to stay a death warrant, sometimes shortly before the execution date, Friedman said. She explained that last-minute litigation is often a result of decisions by prosecutors or the lower court.

Nearly every stay lifted by the court in recent capital cases “was done without an opinion – even after the courts below noted the novelty of the issue or the need for real briefing," Friedman said. “I don’t think the court is interested in taking these claims seriously.”

And even when considering that death warrants have deadlines, as Alito said, it's a stretch to say that the execution of a prisoner constitutes an “emergency." (The U.S. Justice Department in December 2020 told me that the push to carry out executions was an apolitical “law enforcement and public safety issue.”) Crime victims and their family members may want to see punishment carried out, but the government and public don't have a particularly compelling interest in executing an imprisoned person, especially because capital punishment isn't an effective deterrent. So where's the emergency?

Some of Alito’s other arguments disputing the shadow docket problems are even less convincing.

He argued that the court's decision allowing a Texas ban on abortions in December last year didn’t formally overturn Roe v. Wade. But it had the same practical effect, as many have pointed out. And, Roberts has now conceded (in Wednesday's dissent) that the court “signals its view of the merits” when it effectuates a particular policy, even it if doesn’t formally change the law.

Alito also said that rulings on emergency applications don’t create precedent. But the court has scolded lower courts for failing to follow its earlier rulings on emergency petitions over restrictions on religious congregation during the pandemic.

Most recently, on Monday, Justice Amy Coney Barrett argued that “no judge is deciding a case in order to impose a policy result,” urging the public to consider the strength of the courts’ reasoning.

“Read the opinion,” Barrett said -- a day before the court changed major national environmental policy via an entirely un-reasoned, one-paragraph order.

All in all, the justices’ public arguments in defense of the court’s recent pattern fall flat. The fact that the conservative chief justice joined an opinion that calls out shadow docket improprieties makes it that much harder to believe that this court is not imposing policy.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com