Supreme Court’s 'unsigned, unexplained orders' are creating havoc: expert

According to a leading expert on federal law, the current conservative-majority Supreme Court has gone to extraordinary lengths to issue emergency orders at a historically high rate on hot-button issues, and that is raising concerns about their so-called "shadow docket."

In an interview with the Atlantic's Adam Serwer, University of Texas School of Law professor Steve Vladek expressed dismay at how the court has been handling its workload and said the uptick in emergency orders -- many unsigned and lacking legal reasoning -- is creating chaos for the lower courts because they are devoid of guidance for future cases.

As Vladek notes, emergency orders used to be much rarer and mainly deployed in death penalty cases prior to imminent executions.

Under the current court, they have been used to interfere with Covid-19 mandates and a host of other hot-button issues including abortion rights.

As he explained to Serwer, the highest court is leaving the lower courts wondering how to administer justice and on what basis.

"I think the lower courts are in a bit of a sticky wicket, because in some of these cases, especially in the COVID religious-liberty cases, the Supreme Court has been instructing lower courts that its unsigned, unexplained orders are precedential—and that lower courts are erring, as the Court says in one case of the Ninth Circuit, by not following rulings where there was no majority rationale," he explained.

He added, "I think we’re seeing a bit of a smorgasbord where some lower courts are just following what the Supreme Court has said, and some are just throwing up their hands and saying, Without more guidance from the Supreme Court, I’m just sort of stuck here," before offering, "That’s perhaps the biggest point on which there ought to be consensus: Leaving aside who wins and who loses, the less the Supreme Court explains itself in this context, the harder it is for the relevant actors, for the lower courts, for the relevant government officials, to understand what their responsibilities are."

"I think it’s really hard to look at the overall data set and compare, for example, the October 2020 term to the last two terms and not see pretty significant shifts in at least how some of the justices are behaving," he concluded.

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