The Supreme Court’s enigmatic “shadow docket,” explained

“Last week, the Supreme Court handed down a 5-4 decision blocking a lower court’s order requiring a California jail to take several steps — such as socially distancing inmates and providing them with “hand sanitizer containing at least 60% alcohol” — to prevent the spread of Covid-19 within the jail.

I have no idea why the Supreme Court would do such a thing, and neither does anyone else who isn’t a justice or one of their closest advisers.

The reason for our ignorance is that the five justices in the majority — all five of the Court’s Republicans — didn’t bother to explain their decision. The entirety of the Court’s order in Barnes v. Ahlman is a single paragraph of boilerplate language, informing the reader that “the district court’s May 26, 2020 order granting a preliminary injunction is stayed pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition” of a petition asking the justices to fully review this case.

Hundreds of incarcerated people could become infected with a potentially deadly disease. And the Supreme Court won’t even tell us why.

Welcome to the Court’s “shadow docket.”

The term “shadow docket” was coined by University of Chicago law professor William Baude in an influential 2015 article. It refers to “a range of orders and summary decisions that defy [the Court’s] normal procedural regularity.” Often these orders are handed down without any explanation from the majority, or without much advance notice from the Court. Frequently they are handed down on Friday evenings, after at least some of the Supreme Court press corps are already a couple of beers into their weekends.

Because shadow docket cases are often released without a majority opinion explaining the Court’s reasoning, they have less impact on legal doctrine than most ordinary decisions. Judges are bound by the Court’s majority opinions, but a lower court judge can’t follow an opinion that doesn’t exist.

Nevertheless, the stakes in shadow docket cases — which often arise after a party files an emergency request asking the Court to block a lower court order — can be enormous. The decision in Barnes endangers the health of thousands of inmates. Other shadow docket decisions concern billions of dollars. Or they can effectively lock thousands of immigrants out of the country.”

“The Court, meanwhile, has shifted an increasing share of its output to this often inscrutable shadow docket. In the past year, Justice Sonia Sotomayor has written several strongly worded dissents warning that her colleagues are bypassing safeguards intended to prevent the Court from handing down cursory, insufficiently thought-out decisions — and that they often do so to benefit the Trump administration.”

“Unlike cases on the Court’s regular docket, shadow docket cases receive very limited briefings and are rarely, if ever, argued before the justices. Though the justices will often discuss these cases among themselves, they frequently do so on an extraordinarily compressed schedule — leaving far less time for reasoned debate. That’s often true because shadow docket cases frequently arise from emergency requests asking the Court to grant swift and immediate relief, meaning that the justices will only spend days or even hours pondering how to rule on such a request.”

“There’s a common phrase within the judiciary. When a judge initially thinks a case should come down one way, but then they start writing their opinion and realize they can’t come up with a legally sound argument justifying that outcome, they say that the opinion “won’t write.” The ordinary requirement that judges explain their decisions in reasoned opinions can be a tremendous check on judicial power. It discourages those judges from ruling in arbitrary ways.

As Margulies told me, “there are some opinions that just aren’t going to work out” once a justice has taken sufficient time to reason through how to decide the case. But if the Supreme Court pushes too many of its decisions onto its shadow docket, the justices in the majority may never figure out that their first instinct regarding how to decide a case was flawed.”

“the Supreme Court has historically applied a strong presumption against second-guessing lower court judges when a case arrives on the Court’s shadow docket. As Justice Sotomayor wrote in a dissenting opinion in Wolf v. Cook County, one of several recent decisions where she criticized her colleagues for being too eager to stay lower court opinions, “stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument.”
A Supreme Court order blocking a lower court decision has historically been considered an “extraordinary” event, Sotomayor explained. But they’ve become increasingly common in the Trump years.”

Another Rogue Cop Just Got Qualified Immunity. The Judge Who Gave It to Him Isn’t Happy About It.

“A federal judge this week gave a blistering rebuke of qualified immunity, the legal doctrine that makes it difficult to sue police officers in federal court when they violate your civil rights.

“The Constitution says everyone is entitled to equal protection of the law—even at the hands of law enforcement,” wrote Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi in a majority decision released yesterday. “Over the decades, however, judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called ‘qualified immunity.’ In real life it operates like absolute immunity.””

“to overcome qualified immunity, a plaintiff must show that the defendant’s misconduct had been “clearly established” by existing case law—the standard pulled out of thin air by the Supreme Court in Harlow v. Fitzgerald (1982). In practice, this criterion requires that plaintiffs show a public official’s misbehavior is prohibited almost verbatim by a previous ruling from the same federal circuit or from the Supreme Court. That requirement is nearly impossible to meet. “This Court is required to apply the law as stated by the Supreme Court,” Reeves writes. “Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity. The officer’s motion seeking as much is therefore granted.”

It is not unheard of for a federal judge to show disdain for his own ruling. They are required to enforce precedents established by the Supreme Court, even when doing so defies common sense. (Federal judges can also be seen decrying the mandatory minimum sentences they are required by Congress to impose on defendants who meet statutory criteria.)

A review of current qualified immunity decisions is instructive. The legal doctrine has protected two cops who allegedly stole $225,000 while executing a search warrant; a sheriff’s deputy who shot a 10-year-old boy while aiming at the child’s non-threatening dog; a prison guard who forced a naked inmate to sleep in cells filled with raw sewage and “massive amounts” of human feces; two cops who assaulted and arrested a man for the crime of standing outside of his own house; two officers who sicced a police dog on a surrendered suspect. That list is not exhaustive.”

“The Supreme Court has declined to hear a slew of qualified immunity cases and instead volleyed responsibility back to Congress. While such decisions should arguably be made by Congress, the Supreme Court created the very problem it now wants no part in solving.

“I do not envy the task before the Supreme Court. Overturning qualified immunity will undoubtedly impact our society,” Reeves writes. “Yet, the status quo is extraordinary and unsustainable. Just as the Supreme Court swept away the mistaken doctrine of ‘separate but equal,’ so too should it eliminate the doctrine of qualified immunity.””

The Supreme Court just handed Trump a big victory regarding his border wall

“The case first reached the Court in late July 2019, after a lower federal court blocked the Trump administration’s attempt to transfer $2.5 billion that Congress appropriated for military pay, training, and similar personnel-related matters to wall construction. The administration claims it was allowed to do under a statute permitting the Secretary of Defense to transfer military funds “for higher priority items, based on unforeseen military requirements.”

But, as several lower court judges have pointed out, there’s nothing “unforeseen” about the circumstances that led Trump to build this wall. Trump’s campaigned on plans to build a border wall since 2015. In late 2018 and early 2019, Trump even shut down much of the federal government due to a disagreement over how much money should be appropriated to pay for the wall.

So Congress did not deny Trump much of the funding he sought because it failed to foresee an emergent problem that could only be solved by a border wall. It was well aware of Trump’s case for additional funding for his wall, and it rejected that case.”

The Supreme Court stripped thousands of teachers of their civil rights

“The upshot of Justice Samuel Alito’s opinion for a 7-2 Court is that thousands of teachers at religious schools are no longer protected by anti-discrimination laws. If one of them is fired for being Black, or gay, or a woman, the law may do nothing to intervene.

The case involves the “ministerial exception” to civil rights laws. As a general rule, religious institutions have total control over whom they employ as “ministers.” That means that if a church wants to fire its preacher because of that preacher’s race or gender, it may do so, even though such discrimination ordinarily is illegal.

As Alito explains, the Constitution protects “the right of churches and other religious institutions to decide matters ‘of faith and doctrine’ without government intrusion.” Implicit in this right is a certain “autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.””

“a teacher at a religious school whose duties include religious instruction qualifies as a “minister,” and is therefore unprotected by anti-discrimination law.”

“Under Alito’s decision, this fairly small amount of religious instruction — a little more than three hours a week — was enough to trigger the ministerial exception. “Implicit in our decision in Hosanna-Tabor,” Alito writes, “was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.””

The Supreme Court just gave Republicans a powerful new weapon against Obamacare

“The US Supreme Court issued its ruling in Little Sisters v. Pennsylvania Wednesday, holding the Affordable Care Act gives the Trump administration broad authority to grant exceptions to a federal regulation requiring employers to provide birth control coverage to their employees.

On the surface, Justice Clarence Thomas’s majority opinion appears to be focused exclusively on birth control, and it also endorses a policy that could cease to exist in less than a year.

The immediate upshot of Little Sisters is to let stand Trump administration rules allowing employers opposed to birth control to refuse to provide contraceptive coverage to their employees. If presumptive Democratic nominee Joe Biden becomes president next year, however, his administration could repeal the Trump administration’s policy and implement a new policy more favorable to contraception coverage.

But dig just one inch below the surface of Justice Thomas’s opinion, and it has deeply radical implications: Little Sisters opens up a new front in the seemingly endless judicial war on Obamacare. And it gives Republicans a new weapon it can use to attack the landmark legislation President Obama signed more than a decade ago.

Thomas’s opinion does not simply allow the Trump administration to limit many individuals’ access to birth control, it could also allow courts to dismantle a key provision of Obamacare that ensures patients receive preventive care without having to pay out-of-pocket costs.”

The Supreme Court just dealt a huge blow to Congress’s power to investigate Trump

“Trump v. Vance, largely maintains the status quo. As Chief Justice John Roberts states in the first line of that opinion, “in our judicial system, ‘the public has a right to every man’s evidence,’” and “since the earliest days of the Republic, ‘every man’ has included the President of the United States.” Trump does not enjoy absolute immunity from a state prosecutor’s criminal investigation.”

“The upshot of Trump v. Mazars is that House investigators almost certainly will not see potentially damning records concerning Trump’s finances until after the November election. Mazars was also written by Roberts.
Though Mazars does not preclude the House from seeing those records eventually, by the time those records become available Trump will almost certainly either be an ex-president, or he will be firmly entrenched in his second term.

On the surface, it is easy to see Mazars as a defeat for Trump. The decision was 7-2, with all four of the Court’s liberals joining the majority. Justices Clarence Thomas and Samuel Alito both wrote dissents, where they complain that the majority didn’t do enough to protect Trump from investigation.

But make no mistake, Mazars is a victory for Trump because it holds that the president enjoys special immunity from congressional investigation enjoyed by no other citizen — and because it likely shields Trump’s records from the public eye until after the election.”

“Eastland held that Congress is entitled to gather information — and to use compulsory subpoenas to gather such information — whenever that subpoena is “intended to gather information about a subject on which legislation may be had.” So long as the congressional subpoenas sought information on a topic that could plausibly be subject to an act of Congress, those subpoenas were lawful.
The new rule announced in Mazars, however, can be boiled down into four words: “the president is special.”

According to Roberts, “congressional subpoenas for the President’s information unavoidably pit the political branches against one another.” He adds that “without limits on its subpoena powers, Congress could ‘exert an imperious controul’ [sic] over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared.”

So Mazars invents new limits on congressional subpoenas targeting the president, and sends the case back down to a lower court to apply this new rule.”

The Supreme Court’s landmark new Native American rights decision, explained

“The holding of McGirt is that this land, which has 1.8 million residents, most of whom are not Native American, is reserved land. Oklahoma must honor a treaty from nearly two centuries ago setting aside this land for Native peoples.”

“The primary impact of McGirt is that Oklahoma loses much of its power to enforce certain laws against members of Native American tribes within the borders of tribal lands. But the decision will have far less impact on non-Native Americans.”

“The fact that McGirt is a member of a tribe, and that his crime took place on a reservation, matter because of the federal Major Crimes Act (MCA). That law provides that “any Indian who commits” certain offenses “against the person or property of another Indian or any other person” is subject to “the exclusive jurisdiction of the United States” if that crime was committed “within the Indian country.”
Thus, Oklahoma lacks authority to try McGirt for raping someone on a Native American reservation. Only the federal courts may try such a crime.

On the surface, in other words, McGirt seems to involve a fairly minor issue. No one questions that McGirt may be convicted of rape. And no one questions that he can face a stiff penalty for such a conviction. The question is which court may try the case against him.”

“Congress may wipe away its treaties with Indigenous peoples at any time, and it may dissolve a Native American reservation on a whim.
But despite its many incursions on the Creek people’s tribal sovereignty, McGirt concludes that Congress has never taken the ultimate step of dissolving its original treaty with the Creek people. That means that Creek lands remain a reservation — including the place where McGirt committed his crime.

And that means that McGirt must be tried in federal court.”

Why conservative Chief Justice Roberts just struck down an anti-abortion law

“Ultimately, Roberts concludes that the principle of stare decisis — the doctrine that courts should generally be bound by their prior decisions — compels him to strike down Louisiana’s law. “The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts concludes.

As a practical matter, that means the constitutional right to an abortion is likely to survive for at least another year or two. But Roberts also signals that he’s open to a lawsuit challenging this right on other grounds.

The takeaway from Roberts’s opinion isn’t that the right to an abortion is safe. It’s that Roberts is reluctant to bend the Court’s ordinary procedures to hand abortion opponents a victory in this particular case.”