The conservative Supreme Court is issuing some of its most extreme rulings in the shadows

​U.S. Supreme Court, 2021
U.S. Supreme Court, 2021

As bad as the U.S. Supreme Court's regular decisions were this year, what it has done in its "shadow docket" has been particularly dangerous. That includes 10 emergency requests by religious groups challenging COVID-19 restrictions, all of which the court's conservative majority granted.

The "shadow docket" is a term coined by University of Chicago law professor Will Baude six years ago to describe "a range of orders and summary decisions that defy its normal procedural regularity." The shadow docket has always been there, where the court issues rulings (without scheduling hearings) that are often unsigned and often consist of just one or two sentences. But the current iteration of the conservative court led by Chief Justice John Roberts has been picking up the pace of those shadow docket cases.

Steve Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, notes "the past few years have seen a dramatic uptick in summary orders in which the justices have changed the status quo, including by allowing controversial Trump administration policies blocked by lower courts to go into effect while the government appealed, lifting lower-court rulings that had halted scheduled executions, or directly enjoining state policies for the duration of an appeal when lower courts had refused to do so." The fact that the shadow docket exists isn't new; the problem is the "extent to which the justices are using it more and more often to issue significant rulings that change the rights and responsibilities of millions of Americans, all without the daylight […] that comes with plenary review."

That's backed up by the analysis Reuters completed, which looked at emergency applications to the court from mid-2020 through mid-2021. That analysis "found that the court repeatedly favored not just religious groups—another example of the expansive view it has taken in recent years toward religious rights—but also former President Donald Trump's administration, while denying almost 100 applications by other private individuals or groups." This would be what conservatives would normally call an "activist court." But since the court is acting in their favor, they'll certainly not apply that label in this case.

There were 150 emergency applications to the court in the time period, and 29 were granted. That led (among other things) to the execution of 13 death row inmates at the behest of the Trump Justice Department, and the lifting of pandemic restrictions on behalf of religious entities. But private petitioners that weren't churches had no requests granted—not one. That included immigrants and asylum-seekers and 33 individuals who represented themselves, without a lawyer's help.

This activist use of the shadow docket has created a "serious legitimacy problem" for the court, David Gans, civil rights director at the Constitutional Accountability Center argues. "The biggest losers are the American people. By engaging in rushed decision-making and issuing rulings with little to no reasoning available to the public, the Supreme Court is acting without the sustained consideration, reflection, transparency and accountability Americans expect from the Supreme Court," Gans added.

The latest shadow docket offense came in New York on Aug. 12, when the court issued an injunction against a state law stopping evictions during the pandemic, and sided with landlords. This one came with a dissent from the court's three liberals, written by Justice Stephen Breyer. "We must balance against the landlords' hardship the hardship to New York tenants who have relied on [the law's] protections and will now be forced to face eviction proceedings earlier than expected," Breyer wrote. He said ending the moratorium early "may lead to unnecessary evictions."

The "drastic relief" the majority granted landlords, he wrote, should be reserved for cases where legal rights are "indisputably clear." He wrote that "this strict standard is not met here, for three reasons." The first, he wrote, is that the law is "best viewed not as a deprivation of the right to challenge a tenant's hardship claim but as simply delaying the exercise of that right—as of now for less than three weeks until the law expires."

The second reason is that the harm to landlords is at best temporary because "New York is currently distributing more than $2 billion in aid that can be used in part to pay back rent, thereby helping to alleviate the need for evictions." Finally, he said, the court should defer to elected officials in their pandemic response because the legislature is "responsible for responding to a grave and unpredictable public health crisis." Breyer added: "The legislature does not enjoy unlimited discretion in formulating that response, but in this case I would not second-guess politically accountable officials' determination of how best to guard and protect the people of New York."

In the unsigned order, the majority wrote: "This scheme violates the Court's longstanding teaching that ordinarily 'no man can be a judge in his own case' consistent with the Due Process Clause," referring to the law that allows tenants to self-certify hardship and their inability to make rent. It added that other parts of the law will remain in effect, including a provision that "instructs New York courts to entertain a covid-related hardship defense in eviction proceedings, assessing a tenant's income prior to covid, income during covid, liquid assets, and ability to obtain government assistance." Meaning people who can't afford to pay rent are going to have to go to court to prove that they can't pay rent, but the court has to determine that. You can see who is bearing the brunt of this hardship.

The court's legitimacy is most definitely at issue here. The regular process decisions they issued this term were radical and dangerous. The cases they agreed to hear next session are perhaps even more so. Now we also have to worry about the cases that don't wend their way through the trial process through the district and appeals courts. The court can take an emergency order on the shadow docket and with no transparency, no visible process, reshape our lives.

That can't stand. The court has to be reformed to keep this radical majority on the court from doing further damage. Expansion is the most expedient way to do so.

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