{"id":8793,"date":"2022-09-06T16:10:53","date_gmt":"2022-09-06T16:10:53","guid":{"rendered":"http:\/\/lonecandle.com\/?p=8793"},"modified":"2022-09-06T16:10:53","modified_gmt":"2022-09-06T16:10:53","slug":"elena-kagans-valid-critique-of-the-supreme-courts-shadow-docket","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=8793","title":{"rendered":"Elena Kagan’s Valid Critique of the Supreme Court’s ‘Shadow Docket’"},"content":{"rendered":"\n

\n\n“In April, the U.S. Supreme Court voted 5\u20134 to reinstate an Environmental Protection Agency rule promulgated during the Trump administration that had been vacated by a lower court. Why did the Supreme Court reinstate the rule? The majority offered no explanation. Nor did it technically need to do so. The case, Louisiana v. American Rivers<\/em><\/a>, was decided on an emergency basis. Without receiving merits briefing from the parties and without holding oral arguments, the majority simply granted a motion to stay the lower court’s decision. And that was that.<\/p>\n\n\n\n

Critics have dubbed this sort of emergency action the “shadow docket.” It is, in the words<\/a> of University of Chicago law professor William Baude, “a range of orders and summary decisions that defy [the Court’s] normal procedural regularity.” Foremost among the shadow docket’s foes is Justice Elena Kagan, who dissented in American Rivers<\/em>, joined by Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor. “The Court goes astray,” Kagan declared. The emergency docket has become “only another place for merits designations\u2014except made without full briefing and argument.”<\/p>\n\n\n\n

Kagan had a point. As George Washington University law professor Richard J. Pierce Jr. put it<\/a>, “no one can read the opinion unless the court writes it. That is the problem with the shadow docket.” The outcome in American Rivers<\/em> may have been beautifully reasoned and correctly reached. But we have no way of actually knowing that\u2014let alone of fully judging the outcome for ourselves\u2014 because the majority offered zero rationale.”<\/p>\n\n\n\n

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Elena Kagan’s Valid Critique of the Supreme Court’s ‘Shadow Docket’<\/a><\/blockquote>