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In reply to the discussion: Just read a Reuters article that has me incredibly upset: Supreme Court Shadow Docket [View all]ancianita
(35,812 posts)21. Which creates a number of reasons why it can't just "not be used" by Biden. This requires
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
Congress may through the exercise of its powers vitiate and overturn constitutional decisions and restrain the exercise of constitutional rights is an assertion often made but not sustained by any decision of the Court.
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.
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.
Stay applications force the court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument, she wrote. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay.
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.
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.
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Just read a Reuters article that has me incredibly upset: Supreme Court Shadow Docket [View all]
BComplex
Mar 2021
OP
This scares the snot out of me. It's so far out in left field. Rachel Maddow needs to look
BComplex
Mar 2021
#2
It took me a good hour after I read it to wrap my mind around it. This is nasty stuff.
BComplex
Mar 2021
#10
Time to uncorrupt this Supremely Corrupted Reich Of The U.S. Time for 15 Justices.
Hermit-The-Prog
Mar 2021
#9
Thanks for this info. That's really scary, ancianity. This has been going on even worse than
BComplex
Mar 2021
#19
Which creates a number of reasons why it can't just "not be used" by Biden. This requires
ancianita
Mar 2021
#21
SCOTUS has just handed Democrats' their biggest BFD justification for court reform.
ancianita
Mar 2021
#15