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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsJust read a Reuters article that has me incredibly upset: Supreme Court Shadow Docket
I did not know about any of this. In the middle of the night, the VERY ACTIVIST, VERY RIGHT WING Supreme Court is making rulings in secret, for all practical purposes.
According to the article, during the 16 years of the GW Bush and Obama administrations, there were only 8 shadow docket requests, 4 of which were granted/approved. During the 4 years of the trump administration, there were 41 cases...28 of which were approved. And they're planning to undo many of Biden's policies.
The 'shadow docket': How the U.S. Supreme Court quietly dispatches key rulings
In many of those cases, the court summarily overturned lower court rulings using an obscure legal procedure known as the shadow docket. But the short-circuit approach, intended only for emergencies, isnt reserved for death penalty cases. It has, in the last four years, significantly changed the way the high court does business.
Increasingly, the court relies on the shadow docket to make decisions in a wide range of consequential cases, often in a dramatically accelerated fashion and without providing signed opinions or detailed explanations. Sometimes, as in death penalty cases, the decisions are irreversible.
snip
The public generally sees the court as sorting out matters of national importance through extensive briefing, oral arguments and lengthy rulings that explain the law. But the number of substantive shadow docket decisions rose dramatically during the Trump administration. In those four years, the government filed shadow docket applications at 20 times the rate of each of the two previous eight-year administrations. The high court granted the governments requests in a majority of cases.
https://www.reuters.com/article/us-usa-court-shadow-insight-idCAKBN2BF14U
brush
(53,771 posts)Republicans just can not be trusted. They are just evil.
BComplex
(8,046 posts)into this. She and Chris Hayes would do a great job on dissecting what the supremes are up to in the Roberts court.
Biden really needs to install some new supreme court justices. Like about 8 or 9 of them!
RANDYWILDMAN
(2,668 posts)dark stuff here.
We don't have the most sane crew sitting in those seats these days either
BComplex
(8,046 posts)The Supreme Court seems to be weaponizing the court's reach.
FM123
(10,053 posts)Btw, here is the link to entire article:
https://www.reuters.com/article/us-usa-court-shadow-insight-idCAKBN2BF14U
BComplex
(8,046 posts)farmbo
(3,121 posts)From Article III:
In all the other Cases (other than Original Jurisdiction cases like State vs State, or cases involving ambassadors)
before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make
SharonClark
(10,014 posts)Thanks for sharing.
BComplex
(8,046 posts)The implications and possibilities are far reaching, and terrifying to me. The republicans have really put our country in serious danger of becoming fascist. All of their power went to their heads, and they're confident in all that power because they're supported by the electoral college and the vast donations of the corporate elite.
Hermit-The-Prog
(33,328 posts)Change the SCROTUS back to a SCOTUS that is not extremist.
barbtries
(28,787 posts)BComplex
(8,046 posts)This is crazy stuff.
barbtries
(28,787 posts)I hope someone's on it already FFS.
ancianita
(36,030 posts)This specialized docket has become increasingly important in three ways, Vladeck says.
First, there are many more significant rulings coming out of the shadow docket than in even the recent past, he says.
Some of that is by fortuity and some by design, he says.
Second, the federal government has been especially aggressive in taking advantage of the shadow docket, often bypassing federal appeals courts to ask the high court to block or undo federal district court actions, Vladeck says.
And third, the courts conservative and liberal blocs have split sharply, and sometimes bitterly, in this specialized area, he says. The court had decided 11 shadow docket matters by a 5-4 vote this term as of Aug. 11, almost equaling the dozen 5-4 decisions among the 53 decisions stemming from argued cases this term. (The counter is still running on the shadow docket because the 2019-20 term runs until the new term begins in October.)
The shadow docket looks to be a heck of a lot more polarized than the more visible work of the court, Vladeck says.
Hot-button categories
Whether they were decided 5-4 or by some other lineup, shadow docket actions this term mostly fell into three prominent categories.
COVID-19: The court in May denied a request from a California church for relief from the California governors orders limiting attendance at places of worship because of the coronavirus pandemic. And in July, Chief Justice John G. Roberts Jr. joined with the courts liberal bloc to turn away a Nevada churchs similar request for relief from state attendance limits. Justice Samuel A. Alito Jr., in a dissent in the Nevada case, said the court was joining with the state in discriminating in favor of the powerful gaming industry.
The Constitution guarantees the free exercise of religion, Alito wrote in Cavalry Chapel Dayton Valley v. Sisolak. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance.
Election issues: Several emergency applications this term have involved election matters, with a subset of those stemming from COVID-19 concerns. The court sided with state officials on several issues, such as blocking pandemic-motivated lower court orders that had expanded procedures for gathering signatures for ballot initiatives in Idaho and Oregon while allowing Rhode Island to suspend its requirement that absentee ballots have in-person witness verification.
In April, the court stayed a lower court injunction that would have required Wisconsin to count absentee ballots postmarked after the states primary election date. The majority in an unsigned opinion said it was not expressing an opinion on the broader question of whether election procedures should be altered in light of COVID-19. Justice Ruth Bader Ginsburg, writing in dissent for the courts liberal bloc, said the majoritys suggestion that the current situation is not substantially different from an ordinary election boggles the mind.
Trump administration policies: Two rulings granted the Trump administrations requests to lift injunctions blocking new rules that tightened the admissibility of immigrants who might become a public charge, or dependent on welfare or other public benefits. Another ruling turned away a request from opponents of the presidents border wall to order a temporary stop to construction. And the court granted the administrations requests to remove lower-court stays blocking the first three federal executions in a generation.
In February, in one of the cases about the public charge rule, Justice Sonia Sotomayor expressed frustration, as she had in the previous term, about the Trump administrations shadow docket tactics.
Account for yourself, John the pirate Roberts!
BComplex
(8,046 posts)I imagined.
ancianita
(36,030 posts)congressional attention, since Congress can decide how the court system is to be configured, and along with that, whether it should set limitations on any shadow docket use by the executive branch.
from Cornell Law
The Ju- diciary Act of 1789 contained numerous provisions relating to the times and places for holding court, even of the Supreme Court, to times of adjournment, appointment of officers, issuance of writs, citations for contempt, and many other matters which it might be supposed courts had some authority of their own to regulate.1248 The power to enjoin governmental and private action has frequently been curbed by Congress, especially as the action has involved the power of taxation at either the federal or state level.1249 Though the courts have variously interpreted these restrictions,1250 they have not denied the power to impose them.
Reacting to judicial abuse of injunctions in labor disputes,1251 Congress in 1932 enacted the Norris-La Guardia Act which forbade the issuance of injunctions in labor disputes except through compliance with a lengthy hearing and fact-finding process which required the district judge to determine that only through the injunctive process could irremediable harm through illegal conduct be prevented.1252 The Court seemed to experience no difficulty in upholding the Act,1253 and it has liberally applied it through the years.1254
Congresss power to confer, withhold, and restrict jurisdiction is clearly revealed in the Emergency Price Control Act of 19421255 and in the cases arising from it. Fearful that the price control program might be nullified by injunctions, Congress provided for a special court in which persons could challenge the validity of price regulations issued by the government with appeal from the Emergency Court of Appeals to the Supreme Court. The basic constitutionality of the Act was sustained in Lockerty v. Phillips.
https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-2/power-of-congress-to-control-the-federal-courts
A shadow docket might not apply in this case, but if justices are complaining about its use, the court can't be expected to "fix" itself, and Congress might examine how reconfiguring the system might alleviate the needs for "expeditious" rulings (which seem to be driven by politics, anyway) so that DUE process is honored without exception at the SCOTUS level. And not secret.
Also, this shadow docket should not have existed except by Congressional decision. It doesn't look as if Congress had much say in its use. And Sotomayor has made objection.
And perhaps most troublingly, the courts recent behavior on stay applications has benefited one litigant over all others, Sotomayor said, referring to the federal government.
Danger of irreparable harm
Sotomayor has been sounding the alarm about the administrations approach, says Vladeck.
Since Trump took office, the Supreme Court had granted 22 stay requests as of mid-August, in whole or in part, from the federal government. In the 16 combined years of the President George W. Bush and President Barack Obama administrations, the court granted only four such emergency requests from the federal government.
So, you're right to be upset and to bring it up as a big deal issue, imo.
ancianita
(36,030 posts)Maybe we should be glad to find this out rather than upset?
FBaggins
(26,729 posts)If this is the largest justification for court reform... there isn't much justification.
This is easy enough to deal with.
The bulk of the recent "shadow docket" concerns were over the volume of requests from the prior administration (whether for a quick review of some lower court telling Trump that he couldn't do something or to expedite death penalty cases).
So all Biden has to do is not make such requests.
ancianita
(36,030 posts)"All Biden has to do is not make such requests" makes it sound as it it was driven just by Trump.
But according to the ABA's quotes from law schools, it existed before Trump. So I thought it was established in the past by SCOTUS choice.
Quick reviews and the expediting of other rulings doesn't sound like sound jurisprudence.
Saying "the biggest BFD justification" doesn't mean I'm claiming it's the only one, when before this news, we've discussed in DU that there are other justifications.
BComplex
(8,046 posts)according to the article.
The problem with the so-called "shadow docket" isn't that it exists (it has for quite some time)... it's that an exponentially growing number of decisions have been coming through that channel... particularly those that the prior administration asked for in skipping lower court review.
CaptainTruth
(6,589 posts)I know, it's impossible to keep up with everything that's going on!
Edit to add date of article, Courthouse News, February 18, 2021
Members of a House Judiciary subcommittee heard from a number of witnesses Thursday about the sweeping impact of unassigned decisions issued by the U.S. Supreme Court, often handed out with no explanations.
The courts shadow docket a descriptor given to unassigned rulings and orders taken by justices on emergency petitions that one lawmaker called unnecessarily pejorative during Thursdays hearing has recently been used with a higher rate of frequency.
The court used the docket to deny women mifepristone and misoprostol drugs that induce early miscarriages in expectant mothers by mail after the emergency petition sat for months. The court has used the shadow docket to change state-set Covid-19 restrictions for gatherings of religious groups and execute death row inmates without explanation.
According to Hank Johnson, a Georgia Democrat who leads the subcommittee of courts, intellectual property and the internet, the expansive use of this tool of anonymity was in part a reaction to increased requests for expedited relief from the federal government.
Under the Trump administration, the Solicitor General sought five times the number of such emergency or extra-ordinary petitions than the George W. Bush and the Obama administrations combined, Johnson said.
University of Texas School of Law Professor Stephen Vladeck testified Thursday that although the courts docket for ruling on expedited petitions has always existed, its prominence has only grown because of the courts aggressive action on those submissions.
While the Trump administration helped some of the uptick in the high courts use of the shadow docket, he noted that its rulings have broader implications and are being used to change the status quo more frequently.
For example, during Justice Anthony Kennedys last term in October 2017, there were only two shadow docket rulings revoking four public dissents, Vladeck said. Over the next two terms there were 20.
More at link
[link:https://www.courthousenews.com/house-examines-supreme-court-shadow-docket/|]