Animosity between Chief Justice John Roberts and President Barack Obama came to head a little over a decade ago leading to a substantial break in procedure.
At the time it seemed like a one off. Justices usually composed detailed opinions explaining their thinking to the public and rendered judgment only after other courts had weighed in.
But what has become known as the shadow docket has morphed into rulings with no explanation or reasoning seemingly bypassing the lower courts entirely.
This is a story about how the Supreme Court shadow docket came into being as memos recently obtained by the NYT illustrate. Because of the substantial impact on both politics and society, it’s worth a read to understand what’s going on and why.
Okay. I just want Congress to take back the power the constitution gives them. They’ve ceded way too much to the judicial and executive branches because it’s convenient for them to not have to defend their votes.
I agree with you completely, congress is infinitely more accountable even if they are just as corrupt. its by design that they have the power they are supposed to, moving it to the court and the executive is less democratic and unconstitutional for a reason.
When people are upset at the things Republicans do, they say "Congress." When people are upset at the things Democrats do, they say "Democrats." Its one of those patterns that becomes hard to unsee once you realize it.
Thirteen would be acceptable too, I had a math prof who was exceptionally fond of the number 17, and it has carried over to my arbitrary odd number selection heuristic. Your suggestion is better supported by reality.
I see no reason for it to be an odd number. If you cant reach a decision either or then a 50/50 undecided neither should be okay. If the solution cant be found with even numbers, then maybe the problem wasnt such a problem that it needed a ruling. Keep debating if it really is, but if its locked at 5-5 send it back to the lower courts because its not ready for judgement. I think its insane to have a tie breaker “high court”. Because it ends up here where they decide shit after shit that doesnt need deciding like that. Put in the work and reach across the isle for every judgement if it is actually worthy of judgement. Too too few of these 5-9 judgements have actually been imperative enough to warrant the odd numbered tie breaker scheme. Thats what 9 or 17 is, a tie breaker by design. We dont need it. Majority or inconclusive is how it should be.
Shortsighted decisions is all you have in a crisis. If the house is on fire, hosing down the blaze will ruin the furniture, destroy the wallpaper, infiltrate the walls and do untold structural damage. Nevertheless, the house is on fire, and won't be for long, either way.
One way or the other, the court has to be brought to heel. They're so nakedly partisan, corrupt, and otherwise obviously unfit to be impartial arbiters of anything. None of this gets fixed if the court continues on in its current form.
Personally I favor someting akin to jury duty for Federal appellate judges with say, 10 years tenure. Every 4 years, 12 experienced appellate judges are selected at random to be the supreme court. It incentivises everyone to play nice and moderate, because if you want to get really partisan with it, you risk the next supreme court (and potentially all three branches) not being balanced in your favor. Its a sort of MAD. Likewise, If you want your rulings to stand, you should be judicious and reasoned about what you overturn. It also makes corruption a lot more difficult.
The guardrails have all kind of broken past the point of repair and getting to anywhere decent is going to require radical change and administration determined enough to pursue it. Anything less is just condemning ourselves and our children to dealing with this indefinitely.
That’s no way to grift. The people paying someone off want them in power forever. Once upon a time, I would’ve said,”Well the court needs to start with ethical standards that are enforced and enforced with something more than a slap on the wrist and naughty, naughty.” stop hurting me. Unfortunately I’m coming to the conclusion that wouldn’t work either.
It is an interesting issue. The justices seem very worried about the ability for the govt to create change by issuing illegal orders and then exploiting the resulting court delay.
Certainly one can see the benefits of the new approach, consider if president trump declared elections illegal. One would hope that he couldn't cancel the November elections with the court only intervening next year, after the election had been missed.
I don't know whether lower courts couldn't solve this issue themselves
They weren't though. The whole point of this article is they were worried that Obama would make rules they didn't like. They've actually used the shadow docket to intervene repeatedly to allow Trump's illegal orders to go forward. Look at the Barbara case they just heard, or all the illegal firings that they intervened to let go forward. The gutting of the NEH and peace institute and on and on have all been examples of the court overruling a lower court to let a facially illegal order from the Trump administration to go forward. Meanwhile, the Obama case they're mentioning wasn't facially illegal, they just thought they would rule against it, and they intervened without any hearing on the arguments of the various positions, while overruling a lower court that had actually heard the arguments and followed the existing procedures for determining the potential legality of the orders and the harm to the parties, before issuing a stay.
One: John Roberts definitely believed that the Obama admin was trying to end-run the court's authority by issuing orders that were illegal and exploiting the courts delay. They point to the prior EPA statements as explicitly that strategy and they were worried about it being used here for a large-scale change. They created this process to explicitly handle the situation.
Two: Once the emergency power was created and normalized. They then made a second leap that it could be used to intervene positively in areas where they believe the judicial bureaucracy was harming the presidents intentions. This is a new use for this form of relief, primarily used to support Trump policies.
The combination is that they created a tool to be used for a specific purpose but then expanded that tool for use cases they like. It feels haphazard and that they have not seriously considered the best approach for the court to leverage its power.
The court wants two sets of standards, one to prevent Democrats from implementing policy, and one to prevent the law from constraining Republican policy.
Creating an admin rule isn't endrunning the court's authority in any way though, so that doesn't make sense. Congress could make an argument that the admin rule usurped legislative power. But, this rule didn't restrict the court's jurisdiction, did prevent a filing in front of the courts, as exemplified by the lower court actually hearing arguments before making a ruling. That court applied existing procedure and law in determining if preliminary relief was appropriate. The fact that SCOTUS then overturned their ruling without hearing arguments and in a way that contrary to settled procedure and law for preliminary relief, was actually the end run around court authority. That's why Robert's justification is so dishonest. He was the one doing the end run.
As to point two, I would argue that what actually happened was that the court lost its last principled conservative when Kennedy resigned and weren't constrained by an actual respect for the law and their precedent when they had a chance to dabble in their pet projects or where they had a vested interest.
The first paragraph is just nonsense. The Obama admin was trying to effect large-scale change without proper authority by abusing lower court deference and banking that their reforms would be too difficult to uproot when they eventually lost the court case.
They were doing this in pursuit of a good cause because they had lost control of Congress and didn't want to abandon the president's election promises but it was still abusive of the system.
My first paragraph is right. There was no abuse of deference. Every other litigant in the history of these cases has had to go to the appeals circuit first. This isn't the first time new regulations were ordered that people didn't like. There's a test to determine if preliminary relief is appropriate. It's the Winter's test. The test doesn't call for deference to the president. Your argument is actually considered by the Winters test as part of the harms imposed tied in with if the case is likely to succeed on the merits. The court could have allowed the DC Circuit to do its job, like they had in every other case like this ever.
I don't think advancing the Major Questions Doctrine and applying it to a new area of law is a good cause. I also don't think advancing global warming is a good cause.
This actually kind of made me like the shadow docket? Don’t get me wrong I hate almost all the decisions they make on it, but (a) they’re temporary, and (b) the ones I do like, they never would have been able to make until Trump had essentially baked those rules into the system anyway (what they were worried about the EPA doing).
One of the issues currently is how slowly the courts move. They are designed to move slowly. Temporary has a habit of being baked into the system as you put it.
The Supreme Court, regardless of ideological makeup, should not be bypassing the lower courts based on personal animus rather than law. The justices know exactly what stare decisis is and if they don’t, they don’t belong in a courtroom anywhere in the country.
And history tells us that the decision to go rogue by anyone can very easily come back and bite them eventually. Run in circles scream and shout is no way to run a country.
Trump just ignores lower courts though. SCOTUS is the only court whose rulings he’s even somewhat given the time of day. And I think if they’d created the shadow docket under him, he wouldn’t. So the fact it was invented under/used against Obama is the only reason it’s working (even though I didn’t like that outcome).
So I mean yeah it sucks most of the time, but it’s kind of lucky we gave another branch of government that kind of power just before we voted in the #1 guy who needs that kind of power to reign him in.
[OP] horseradishstalker | 10 days ago
Submission statement:
Animosity between Chief Justice John Roberts and President Barack Obama came to head a little over a decade ago leading to a substantial break in procedure.
At the time it seemed like a one off. Justices usually composed detailed opinions explaining their thinking to the public and rendered judgment only after other courts had weighed in.
But what has become known as the shadow docket has morphed into rulings with no explanation or reasoning seemingly bypassing the lower courts entirely.
This is a story about how the Supreme Court shadow docket came into being as memos recently obtained by the NYT illustrate. Because of the substantial impact on both politics and society, it’s worth a read to understand what’s going on and why.
Rude_Lie_5005 | 10 days ago
looks like a courtrom drama script
AlfaNovember | 10 days ago
Just think: A 17-member SCOTUS would not be so imperiled by personal animosity, nor so able to rule from the shadows.
Expand the court. For the good of democracy.
Tsk201409 | 10 days ago
We need a separate constitutional court like modern democracies have. Congress can make one.
mimaikin-san | 10 days ago
Congress is just as corrupt as the Court
Tsk201409 | 10 days ago
Okay. I just want Congress to take back the power the constitution gives them. They’ve ceded way too much to the judicial and executive branches because it’s convenient for them to not have to defend their votes.
NinjaLion | 9 days ago
I agree with you completely, congress is infinitely more accountable even if they are just as corrupt. its by design that they have the power they are supposed to, moving it to the court and the executive is less democratic and unconstitutional for a reason.
ep1032 | 9 days ago
When people are upset at the things Republicans do, they say "Congress." When people are upset at the things Democrats do, they say "Democrats." Its one of those patterns that becomes hard to unsee once you realize it.
Tsk201409 | 9 days ago
This is because the media is owned by the oligarchs
roehnin | 9 days ago
13: one per circuit, and nominated from courts in those circuits
AlfaNovember | 9 days ago
Thirteen would be acceptable too, I had a math prof who was exceptionally fond of the number 17, and it has carried over to my arbitrary odd number selection heuristic. Your suggestion is better supported by reality.
roehnin | 9 days ago
Yeah, thanks. It also has the advantage of ensuring regional representation.
progbuck | 9 days ago
Americans are way, way too superstitious to accept 13, even though it would be a perfectly good number.
snowflake37wao | 9 days ago
I see no reason for it to be an odd number. If you cant reach a decision either or then a 50/50 undecided neither should be okay. If the solution cant be found with even numbers, then maybe the problem wasnt such a problem that it needed a ruling. Keep debating if it really is, but if its locked at 5-5 send it back to the lower courts because its not ready for judgement. I think its insane to have a tie breaker “high court”. Because it ends up here where they decide shit after shit that doesnt need deciding like that. Put in the work and reach across the isle for every judgement if it is actually worthy of judgement. Too too few of these 5-9 judgements have actually been imperative enough to warrant the odd numbered tie breaker scheme. Thats what 9 or 17 is, a tie breaker by design. We dont need it. Majority or inconclusive is how it should be.
redyellowblue5031 | 10 days ago
How is that not also a short sighted decision?
Expanding the court doesn’t seem to address the underlying issues they outline.
[OP] horseradishstalker | 10 days ago
They probably didn’t read the article. A suggestion like that is making the rounds, but you are correct that it has nothing to do with the discussion.
pocket_eggs | 9 days ago
Shortsighted decisions is all you have in a crisis. If the house is on fire, hosing down the blaze will ruin the furniture, destroy the wallpaper, infiltrate the walls and do untold structural damage. Nevertheless, the house is on fire, and won't be for long, either way.
nordic86 | 9 days ago
What if we had a 538 member court, then we could have representation across the land!
nishagunazad | 10 days ago
One way or the other, the court has to be brought to heel. They're so nakedly partisan, corrupt, and otherwise obviously unfit to be impartial arbiters of anything. None of this gets fixed if the court continues on in its current form.
Personally I favor someting akin to jury duty for Federal appellate judges with say, 10 years tenure. Every 4 years, 12 experienced appellate judges are selected at random to be the supreme court. It incentivises everyone to play nice and moderate, because if you want to get really partisan with it, you risk the next supreme court (and potentially all three branches) not being balanced in your favor. Its a sort of MAD. Likewise, If you want your rulings to stand, you should be judicious and reasoned about what you overturn. It also makes corruption a lot more difficult.
The guardrails have all kind of broken past the point of repair and getting to anywhere decent is going to require radical change and administration determined enough to pursue it. Anything less is just condemning ourselves and our children to dealing with this indefinitely.
[OP] horseradishstalker | 10 days ago
That’s no way to grift. The people paying someone off want them in power forever. Once upon a time, I would’ve said,”Well the court needs to start with ethical standards that are enforced and enforced with something more than a slap on the wrist and naughty, naughty.” stop hurting me. Unfortunately I’m coming to the conclusion that wouldn’t work either.
Wagllgaw | 10 days ago
It is an interesting issue. The justices seem very worried about the ability for the govt to create change by issuing illegal orders and then exploiting the resulting court delay.
Certainly one can see the benefits of the new approach, consider if president trump declared elections illegal. One would hope that he couldn't cancel the November elections with the court only intervening next year, after the election had been missed.
I don't know whether lower courts couldn't solve this issue themselves
elmonoenano | 10 days ago
They weren't though. The whole point of this article is they were worried that Obama would make rules they didn't like. They've actually used the shadow docket to intervene repeatedly to allow Trump's illegal orders to go forward. Look at the Barbara case they just heard, or all the illegal firings that they intervened to let go forward. The gutting of the NEH and peace institute and on and on have all been examples of the court overruling a lower court to let a facially illegal order from the Trump administration to go forward. Meanwhile, the Obama case they're mentioning wasn't facially illegal, they just thought they would rule against it, and they intervened without any hearing on the arguments of the various positions, while overruling a lower court that had actually heard the arguments and followed the existing procedures for determining the potential legality of the orders and the harm to the parties, before issuing a stay.
Wagllgaw | 10 days ago
There's two pieces here.
One: John Roberts definitely believed that the Obama admin was trying to end-run the court's authority by issuing orders that were illegal and exploiting the courts delay. They point to the prior EPA statements as explicitly that strategy and they were worried about it being used here for a large-scale change. They created this process to explicitly handle the situation.
Two: Once the emergency power was created and normalized. They then made a second leap that it could be used to intervene positively in areas where they believe the judicial bureaucracy was harming the presidents intentions. This is a new use for this form of relief, primarily used to support Trump policies.
The combination is that they created a tool to be used for a specific purpose but then expanded that tool for use cases they like. It feels haphazard and that they have not seriously considered the best approach for the court to leverage its power.
Tarantio | 9 days ago
The court wants two sets of standards, one to prevent Democrats from implementing policy, and one to prevent the law from constraining Republican policy.
Consistency is for people with principles.
elmonoenano | 10 days ago
Creating an admin rule isn't endrunning the court's authority in any way though, so that doesn't make sense. Congress could make an argument that the admin rule usurped legislative power. But, this rule didn't restrict the court's jurisdiction, did prevent a filing in front of the courts, as exemplified by the lower court actually hearing arguments before making a ruling. That court applied existing procedure and law in determining if preliminary relief was appropriate. The fact that SCOTUS then overturned their ruling without hearing arguments and in a way that contrary to settled procedure and law for preliminary relief, was actually the end run around court authority. That's why Robert's justification is so dishonest. He was the one doing the end run.
As to point two, I would argue that what actually happened was that the court lost its last principled conservative when Kennedy resigned and weren't constrained by an actual respect for the law and their precedent when they had a chance to dabble in their pet projects or where they had a vested interest.
Wagllgaw | 9 days ago
The first paragraph is just nonsense. The Obama admin was trying to effect large-scale change without proper authority by abusing lower court deference and banking that their reforms would be too difficult to uproot when they eventually lost the court case. They were doing this in pursuit of a good cause because they had lost control of Congress and didn't want to abandon the president's election promises but it was still abusive of the system.
elmonoenano | 9 days ago
My first paragraph is right. There was no abuse of deference. Every other litigant in the history of these cases has had to go to the appeals circuit first. This isn't the first time new regulations were ordered that people didn't like. There's a test to determine if preliminary relief is appropriate. It's the Winter's test. The test doesn't call for deference to the president. Your argument is actually considered by the Winters test as part of the harms imposed tied in with if the case is likely to succeed on the merits. The court could have allowed the DC Circuit to do its job, like they had in every other case like this ever.
I don't think advancing the Major Questions Doctrine and applying it to a new area of law is a good cause. I also don't think advancing global warming is a good cause.
rasta_faerie | 10 days ago
This actually kind of made me like the shadow docket? Don’t get me wrong I hate almost all the decisions they make on it, but (a) they’re temporary, and (b) the ones I do like, they never would have been able to make until Trump had essentially baked those rules into the system anyway (what they were worried about the EPA doing).
[OP] horseradishstalker | 10 days ago
One of the issues currently is how slowly the courts move. They are designed to move slowly. Temporary has a habit of being baked into the system as you put it.
The Supreme Court, regardless of ideological makeup, should not be bypassing the lower courts based on personal animus rather than law. The justices know exactly what stare decisis is and if they don’t, they don’t belong in a courtroom anywhere in the country.
And history tells us that the decision to go rogue by anyone can very easily come back and bite them eventually. Run in circles scream and shout is no way to run a country.
rasta_faerie | 10 days ago
Trump just ignores lower courts though. SCOTUS is the only court whose rulings he’s even somewhat given the time of day. And I think if they’d created the shadow docket under him, he wouldn’t. So the fact it was invented under/used against Obama is the only reason it’s working (even though I didn’t like that outcome).
So I mean yeah it sucks most of the time, but it’s kind of lucky we gave another branch of government that kind of power just before we voted in the #1 guy who needs that kind of power to reign him in.