Just read a Reuters article that has me incredibly upset: Supreme Court Shadow Docket

[ancianita]

13. Here's more about it from the American Bar Association Journal.

https://www.abajournal.com/web/article/scotus-shadow-docket-draws-increasing-scrutiny

“Narratives about the Supreme Court and its regular docket are increasingly incomplete,” says Stephen I. Vladeck, a law professor at the University of Texas at Austin, who has also written about the shadow docket.

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 court’s 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 governor’s orders limiting attendance at places of worship because of the coronavirus pandemic. And in July, Chief Justice John G. Roberts Jr. joined with the court’s liberal bloc to turn away a Nevada church’s 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 state’s 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 court’s liberal bloc, said the majority’s “suggestion that the current situation is not ‘substantially different’ from ‘an ordinary election’ boggles the mind.”


Trump administration policies: Two rulings granted the Trump administration’s 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 president’s border wall to order a temporary stop to construction. And the court granted the administration’s 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 administration’s shadow docket tactics.

Account for yourself, John the pirate Roberts!