By Kenneth Tiven in Washington
Has the US Supreme Court Chief Justice John Roberts lost control of his five fellow conservatives? Court watchers in the US are concerned because the chief justice sided with his three liberal colleagues in a recent shadow docket case. That case limits the ability of states to block projects that come under review by the federal Clean Water Act. As a temporary decision, it requires no briefs and no oral arguments.
The term “shadow docket” began in 2015 to reflect an obscure part of the Supreme Court’s work—the thousands of unsigned and usually unexplained orders that the justices issue each year to manage their docket. Cases that go through briefs and oral arguments with signed opinions are called merit dockets.
Law Professor Steven Vladeck said that the shadow decisions should not be ignored, even though temporary. In this case, the dissent written by Justice Elena Kagan chastised the conservatives for procedurally abusing the process. The chief justice joining this side endorses claims that the majority are short-circuiting the ordinary procedures.
Justice Kagan wrote that this case renders the Court’s “emergency docket not for emergencies ….only another place for merits determinations—except made without full briefing and argument.”
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The principal justification for shadow docket orders, said Professor Vladeck, is the need to intervene early in litigation to prevent a party from suffering irreversible harm as an appeal unfolds and was nowhere apparent.
Vladeck, who teaches courts and constitutional law at the Texas School of Law, went on to say that Roberts no longer controls the shadow docket. “Instead, the Court’s destiny increasingly appears to be controlled by Justices Brett Kavanaugh and Amy Coney Barrett,” he said.
In his opinion, Justice Kavanaugh seems more troubled by criticisms of the Court’s behaviour, describing Justice Kagan’s dissent as worn-out rhetoric.
Vladeck says that the rhetoric is not wearing out. It is the Court’s credibility. The justices have long insisted—as Justices Sandra Day O’Connor, Anthony Kennedy and David Souter did in 1992—that “the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the nation.”
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Now, Vladeck adds, the proliferation of principle-free decisions affecting more and more Americans—and with a clear, troubling tendency of favouring Republicans over Democrats—calls that legitimacy into serious question.
It is understandable, then, why Roberts would finally speak out. No one better understands the stakes for the Court’s credibility—and institutional viability. If even his objections can’t persuade the other conservatives to stop abusing the shadow docket, it may signal the willingness of the Court’s conservative majority to go even further; to use the shadow docket to resolve even more significant and contentious constitutional questions.
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—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels