Congress Finally Scrutinizes One of SCOTUS' Most Disturbing Practices
There’s one court reform Democrats and Republicans might actually agree on.
BY MARK JOSEPH STERN
FEB 18, 20216:53 PM
Over the last few years, the Supreme Court has dramatically altered the way it decides most cases—without acknowledging or justifying this radical shift. More and more often, the justices forego the usual appeals procedure in favor of rushed decision-making behind closed doors in what’s known as “the shadow docket.” They issue late-night opinions on the merits of a case without hearing arguments or receiving full briefing, and often refuse to reveal who authored the opinion, or even how each justice voted. The public is then left to guess why or how the law has changed and what reasoning the court has embraced. These emergency orders are supposed to be a rare exception; today, however, the court regularly uses them to make law in hugely controversial cases, including disputes over the border wall, COVID restrictions, and executions. On Thursday, the House Judiciary Committee held a hearing to decide what, if anything, Congress can do to address a problem that’s spiraling out of control.
The House’s interest in the shadow docket is an encouraging sign that at least some members of Congress want to exercise their own constitutional powers to help fix the Supreme Court. It’s easy to forget that the democratic branches of government have real power over the federal judiciary. Congress can force SCOTUS to hear certain cases and prevent it from hearing others; it created the lower courts and gave them authority to decide a wide array of controversies, a privilege it can also strip away. In 1996, for instance, Congress revoked federal courts’ power to hear many lawsuits filed by state prisoners. Back then, lawmakers decided that courts were granting relief to too many people behind bars, so it took away the tools judges needed to safeguard due process. Progressives hate that law, and rightly so, but it’s a reminder that Congress can rein in a judiciary that it perceives to be out of control. Will Democrats take advantage of that power now that they hold Congress and the White House?
After Thursday’s two hour hearing, it appears the short answer is: maybe. Members of both parties asked good, sometimes surprisingly sharp questions of the four witnesses: Steve Vladeck a professor at the University of Texas School of Law (and Slate contributor), Amir Ali of the MacArthur Justice Center, Loren AliKhan, the solicitor general of the District of Columbia, and Michael Morley of Florida State University College of Law. Vladeck, probably the foremost expert on the shadow docket, laid out the issue succinctly. Shadow docket decisions are rushed and regularly unsigned. They disrupt the normal appeals process, allowing favored plaintiffs to leapfrog over lower courts to claim a quick victory at SCOTUS. They divide the court along partisan lines more often than normal decisions. They routinely give lower courts little to no guidance, forcing judges to guess what the majority is thinking. All of these features undermine public confidence in the court, which, in turn, threatens its legitimacy.
Between 2017 and 2020, the number of divided shadow docket decisions increased roughly tenfold. There are a number of reasons why: The Trump administration aggressively lobbied the Supreme Court to issue emergency orders approving some executive action, and got what it wanted with alarming frequency. For example, SCOTUS never issued a decision upholding Trump’s raid of federal funds to build his border wall without authorization, or affirming the legality of multiple restrictions on asylum. Yet Trump was able to build (part of) his wall and impose draconian limits on asylum-seekers anyway, because SCOTUS authorized these policies through the shadow docket (sometimes by 5–4 votes). The Trump administration also urged SCOTUS to lift stays of execution during its eleventh hour killing spree, and the conservative majority happily obliged. Republican activists and office-holders joined in before the 2020 election, racing to SCOTUS to clear away decisions that expanded voting rights in their states.
More:
https://slate.com/news-and-politics/2021/02/supreme-court-shadow-docket-house-hearing.html
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