Podcast Summary
The Supreme Court's Shadow Docket: Influential Decisions Made Without Fanfare: The Supreme Court's shadow docket, decisions made without oral arguments or lengthy explanations, have become more frequent and impactful, shaping American policy with little public scrutiny, including controversial decisions on federal death penalties, abortion, and border wall funds.
The Supreme Court's shadow docket, which refers to decisions made without oral arguments or lengthy explanations, has become increasingly influential in shaping American policy. These decisions, which can have significant impacts, are often made late at night or without much public scrutiny. For instance, in July 2020, the Supreme Court made several controversial decisions in federal death penalty cases, allowing executions to proceed despite constitutional concerns. The court also made unsigned and unexplained orders that effectively ended abortion in Texas and allowed President Trump to tap funds for the border wall. While the court has had the ability to intervene in emergencies for over a century, the frequency and impact of these decisions have increased in recent years, raising concerns about transparency and accountability. Understanding the shadow docket is crucial for fully grasping the Supreme Court's role in American life.
The Supreme Court's Shadow Docket: Shaping Law and Politics: The Supreme Court's less publicized decisions on the shadow docket can significantly impact American society and the balance of power between the branches of government.
The Supreme Court's "shadow docket," or the decisions it makes outside of its high-profile cases, has become increasingly significant in shaping the law and the role of the court in American politics. Historically, the court was heavily influenced by Congress, which controlled its docket. However, reforms led by Chief Justice William Howard Taft in the early 20th century aimed to make the court more autonomous and able to decide which cases to hear. This shift led to a growing reliance on the shadow docket for handling a wide range of cases, from administrative tasks to high-stakes decisions. These decisions, while less publicized, can have significant impacts on American society and the balance of power between the branches of government.
The Supreme Court's Expanding Power in the Early 20th Century: The Supreme Court's control over its docket through certiorari gave it significant influence in public policy disputes, but lack of transparency and rules has raised concerns about separation of powers. A more balanced approach, where Congress exerts more control, may be healthier for the system.
The early 20th century marked a significant shift in the Supreme Court's power, specifically with the rise of certiorari, which allowed the court to have more control over its docket. This expansion of power came during a time of massive federal government growth and increased regulation of American lives. The court's ability to control its docket and choose which cases to hear gave it immense power and influence in public policy disputes. However, the lack of transparency and rules governing this process has led to concerns about separation of powers. A more balanced approach, where Congress exerts more control over the court's docket, may be healthier for the system. From 1925 to 1988, there was a period of a mixed docket, where some jurisdiction was discretionary and some mandatory, which could be seen as a more balanced approach.
The relationship between the Supreme Court and Congress and public opinion: During periods when the Supreme Court's decisions align with public opinion, Congress is less likely to challenge them. Conversely, when out of sync, public backlash can lead to significant consequences.
The Supreme Court's decisions during the 40s, 50s, and 60s, which were seen as progressive and ahead of public opinion, were only possible because Congress did not aggressively push back against the court. Contrastingly, during the 1930s, when the court was conservative and out of sync with public opinion, there was massive public backlash, leading to FDR's failed attempt to expand the number of Supreme Court justices. The current Supreme Court, however, seems unconcerned with Congress, making the dynamic between the branches an important issue to consider. For instance, in 1961, when James Meredith attempted to enroll in the University of Mississippi as the first Black student, the Supreme Court's handling of emergencies was different. Individual justices dealt with emergencies, and when Justice Hugo Black decided Meredith should be allowed to attend, riots ensued. Despite disagreements with the law, Americans are expected to comply, as shown by the two deaths and 100 injuries that occurred. Overall, the relationship between the Supreme Court and Congress and the public's response to their decisions plays a significant role in shaping American life.
Shift in Supreme Court's handling of emergency stays of executions: From the late 1970s to 1980s, the Supreme Court moved from a single justice deciding emergency stays of executions to the full court, but stopped providing explanations, leading to less transparency and accountability.
The Supreme Court's handling of emergency applications for stays of executions underwent a significant shift in the late 1970s and 1980s. Prior to this period, a single justice would make decisions on these applications, which were understood to be temporary and not binding on the full court. However, with the reinstatement of the death penalty and the subsequent increase in emergency applications, the court began to refer more of these cases to the full court for decision. Despite this change to a full court process, the court stopped providing explanations for its decisions, leading to a lack of transparency and accountability. This shift may have been motivated by a desire to limit the influence of justices who were opposed to the death penalty, resulting in more frequent denials of stays and, later, orders unstaying executions.
Supreme Court's Expanded Role in National Policies: The Supreme Court's power has grown, enabling it to block executive actions on climate change, immigration, and COVID-19 safety regulations, raising concerns about its accountability and potential for politically motivated decisions.
The Supreme Court's power has significantly expanded in recent years, allowing it to intervene in cases with far-reaching consequences beyond the death penalty. This shift began in the mid 2010s and has led to the Court blocking various executive actions, including those related to climate change, immigration, and COVID-19 safety regulations. The Court's behavior has raised concerns about its accountability and the potential for politically motivated decisions. For instance, Judge Matthew Kaczmarek in Texas recently moved to restrict access to the abortion pill Mifepristone, adding to the ongoing debate around reproductive rights. The Supreme Court's increased intervention in these matters underscores the significant influence it wields in shaping national policies and issues.
Supreme Court's Use of Emergency Relief in Contentious Areas: The Supreme Court's use of emergency relief to make and break policies, particularly in contentious areas like abortion and immigration, has significantly increased in recent years, with the Biden and Trump administrations making a combined 51 emergency applications in eight years, compared to just 8 in the Bush and Obama administrations' 16-year tenure.
The Supreme Court's use of emergency relief to make and break policies, particularly in contentious areas like abortion and immigration, has significantly increased in recent years. This strategy, which involves asking the Supreme Court to put a lower court's ruling on hold while an appeal is ongoing, was employed by the Biden administration to keep mifepristone, a widely used drug for medication abortions, on the market after a federal judge in Texas invalidated its FDA approval. This strategy, which gained traction in the 1970s for death penalty cases, has become more common in recent times, with the Trump administration making 41 emergency applications in four years, compared to just 8 in the Bush and Obama administrations' 16-year tenure. The consequences of this trend are far-reaching, affecting various communities and policies, from immigration to COVID-19 mitigation measures. The impact of these decisions is not always immediately felt by the general public, but the Texas abortion ban case served as a transformative moment that brought more attention to this issue.
Supreme Court's Controversial Use of the Shadow Docket: The Supreme Court's use of the shadow docket to make significant decisions without a full hearing or written opinion has raised concerns over political decision-making and lack of transparency.
The Supreme Court's use of the "shadow docket" to make significant decisions without a full hearing or written opinion has become a source of controversy and concern. This was highlighted when Texas's 6-week abortion ban was allowed to go into effect in September 2021, leaving women without access to abortion overnight. Critics argue that justices are making political decisions without explanation, acting like a small legislature. Some believe the justices are not acknowledging the political implications of their actions. Justice Alito defends the court's use of the shadow docket, but critics argue that not every emergency application justifies such action. The disconnect lies in the assumption that a few examples justify the court's actions across the board. The shadow docket's use has raised questions about the court's deliberation and accountability.
Supreme Court's Inconsistent Behavior and Political Preferences: The Supreme Court's inconsistent decisions in recent years, particularly in immigration and abortion cases, have raised concerns about the use of power based on political preferences rather than substantive principles, eroding trust in the court.
The Supreme Court's inconsistent behavior in recent years, as highlighted in the discussion of immigration cases, raises concerns about the use of power not in the service of substantive principles but political preferences. Justice Kagan's dissent in the abortion case emphasizes this issue of latent inconsistencies and the appearance of power being used beyond checks and balances. While some argue that the court's actions can be explained by the legality of certain policies, the inconsistencies remain unaddressed, fueling distrust in the court. On the other hand, the advantages of the court's certiorari process include efficiency and respect for lower courts, but the use of emergency relief raises questions about transparency and trust, especially during a time when the court's trustworthiness is already low.
Eroding Public Trust in the Supreme Court: The lack of transparency and inconsistent decision-making by the Supreme Court is eroding public trust, necessitating a broader conversation about potential reforms.
The lack of transparency and inconsistent decision-making by the Supreme Court is eroding public trust and leading to calls for accountability. Historically, the court's power and moral authority have come from providing principled justifications for its decisions. However, the current trend of using the shadow docket and not explaining the reasoning behind interventions is causing concern. There's a need for a broader conversation about issues with the court that could potentially garner bipartisan support and lead to reforms. This might include congressional action to assert leverage over the court. The current focus on specific cases, such as Dobbs or affirmative action, can perpetuate the notion that efforts to reign in the court are partisan. To move forward, it's essential to find common ground and recognize that the court's power affects us all.
