"The Supreme Court increasingly relies on the shadow docket to make decisions often in a dramatically accelerated fashion, without providing signed opinions or detailed explanations.
Decisions can come in the middle of the night, with no public discussion and no guidance to lower-court judges on how to analyze similar cases. The speed and secretiveness has drawn criticism from legal experts both on the right and left, who call it an improper use of the court’s tremendous power.
“It’s hard for the public to know what is going on, and it’s hard for the public to trust that the court is doing its best work,” said William Baude, a conservative law professor at University of Chicago Law School who coined the phrase “shadow docket” and has called for greater transparency." - Reuters
Ten key decisions that the Supreme Court decided with the shadow docket are summarized in this data collection created with the free Wakelet app.
Supreme Court Shadow Court
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Cryptic decisions affecting millions
"Republican former President Donald Trump's administration won 28 of the 41 cases it brought via the shadow docket. His administration made greater use of the emergency process and scored more wins than his two predecessors combined. In August, the court handed Democratic President Joe Biden's administration two major defeats using the shadow docket. The Supreme Court ended a COVID-19 pandemic-related federal moratorium on residential evictions. It also denied Biden's bid to rescind an immigration policy implemented by Trump that forced thousands of asylum seekers to stay in Mexico while awaiting U.S. hearings.
A Reuters analysis of a year of shadow docket filings found that the court repeatedly favored religious groups and Trump's administration while denying almost 100 applications by other private individuals or groups." - Reuters
"Legal scholars also raised concerns about the court’s increasing reliance on its so-called shadow docket, or decisions made without hearing oral arguments from the parties involved. In these scenarios, the court gives only a cursory explanation behind its ruling." - KUT 90.5
Supreme Court Justices with agendas
Justice Samuel A. Alito Jr.’s says “shadow docket” is a misleading phrase. - NY Times
This is surprising coming from a Justice who openly disrespected a President during the State of The Union speech.
"The behavior of Justice Alito at last night's State of the Union address -- visibly shaking his head and mouthing the words "not true" when Obama warned of the dangers of the Court's Citizens United ruling during the 2010 State of the Union-- was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court. It has nothing to do with etiquette and everything to do with the Court's ability to adhere to its intended function." - Salon
"The president had taken the unusual step of publicly scolding the high court, with some of its members in robes seated before him in the House. "With all due deference to the separation of powers," he said, the court last week "reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections." Watch Alito on video here.
"There were days when judges stayed out of politics," Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. told NBC News. "It would be nice to go back to those days." - NBC News
Supreme Court opens floodgates to special interest election spending
The Koch Brothers network is spending millions to oppose the Build Back Better plan which could increase their taxes and reduce pollutions from their coal plants. This is a direct result of the Supreme Court's decision to approve Citizens United that Alioto championed.
"AFP Action, the Super PAC affiliate of the Koch network’s flagship group Americans for Prosperity, spent $47 million last year, all of it to elect Republicans and defeat Democrats in high-profile races. The PAC tied to the Libre Initiative, a Koch affiliate focused on Hispanic Americans, spent $1.3 million in other key races.
The tip of the spear for the Koch network in this pressure campaign is Americans for Prosperity. Led by longtime Koch operative Tim Phillips, AFP is spending seven figures on TV and digital ads opposing not only Biden’s $3.5 trillion Build Back Better Act but also the bipartisan infrastructure deal awaiting a vote in the House of Representatives." - Rolling Stone
Storytelling apps reveal the facts
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The Shadow Court Wakelet collection combines Supreme Court hearings, tweets, images and videos into an easily understood packet of information. The Wakelet app is a great way to present information from multiple sources in a simple, coherent way.
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The Juris Lab is a forum where data analytics meet the law. It provides content developed by contributors expert in quantitative legal analysis and provided as short posts focused on decisions and individuals that play roles in all U.S. federal and state courts. Data is presented so that it's easily understood by the public, academics and legal experts.
SCOTUS Blog a blog that covers the U.S. Supreme Court comprehensively, without bias and according to the highest journalistic and legal ethical standards. The blog is provided as a public service and generally reports on every merits case before the court at least three times: before argument, after argument and after the decision.
Harvard Law Review - Steve Vladeck
An Injustice - James Willis
Supreme Court or Star Chamber?
"The Star Chamber is synonymous with social and political oppression through the arbitrary use and abuse of the power it wielded. In modern times, legal or administrative bodies with strict, arbitrary rulings, no "due process" rights to those accused, and secretive proceedings are sometimes called "star chambers" as a metaphor." - Wikipedia
"People were tried in the Star Chamber for things like treason, conspiracy, and libel, and the court began to be used to enforce severe judgments against people who were out of favor with the monarch. The Star Chamber went from being a tool for order to a weapon used to prosecute anyone who dared to dissent with the monarchy, ranging from the Puritans to booksellers. As a result, the court began to be associated with the abuse of power and authority." - InfoBloom
The title image of the Data Collection is from the movie Star Chamber.
TakeAway: The Wakelet app helps explain how the Supreme Court's misuse of the Shadow Docket hurts all Americans.
Resources: Images used from Political Cartoons.