The Shadow Docket Thing Is Bumming Me Out - Esquire

Okay, let’s get the rules straight. Guns or gavels?From NBC News:

The court's conservative majority has on a regular basis blocked lower court rulings that have stymied President Donald Trump’s agenda, sparking criticism from within and outside the judiciary. Jackson, often a vocal dissenter in those cases, forcefully aired her critique of the court's actions in a rare public appearance with Kavanaugh at an event for lawyers and judges held at the federal courthouse in Washington. Bemoaning the recent increase in such emergency filings—requested to challenge lower court rulings—she suggested that the number of filings would drop if the court were stingier about granting them.

Say it, Madame Justice.

The procedure has become known as the “shadow docket” because the court rarely hears arguments and often issues terse decisions with little explanation.

The Supreme Court decisions can allow policies to go into effect at early stages in legal challenges, long before lower courts have reached any definitive conclusions. The cases might then return to the Supreme Court later in the process, leading to final decisions on the merits. In the last year, the court has, among other things, allowed Trump to fire thousands of federal workers, assert control over previously independent federal agencies and implement various aspects of his hard-line immigration policy. All those moves, done through the shadow docket, had been blocked by lower courts.

"I just feel like this uptick in the court's willingness to get involved ... is a real unfortunate problem," Jackson said. Among other things, it affects how lower court judges approach cases, as they already have a preliminary sense of how the Supreme Court might approach them on appeal, creating "a warped kind of proceeding," she added. “It's not serving the court or this country well."

Mr. Justice Barley Hops naturally disagreed with his colleague.

Kavanaugh, usually in the majority in shadow docket cases, defended the court—as he has done in the past—saying it has to act one way or another when the government or another litigant files an emergency application. Kavanaugh noted that the increase in government applications is not unique to Trump, saying the court also granted similar requests made by the Biden administration, albeit at a lower rate.

In other words, Biden did it, too— but not so often, and far less consequentially. Not a particularly convincing argument when you consider how radically Kavanaugh and the rest of the carefully constructed conservative majority on the Court has rearranged the separation of powers and much of the basic structure of the modern American government. And how instrumental the shadow docket as been to both those damnable efforts.

Frankly, I give both Jackson and Kavanaugh credit for bringing the inner conflicts of a severely conflicted Court out into the open this way, one thin light through the shadows.