In the shadow of the Supremes

Bringing the emergency docket into the light

This is not about Motown. Sorry if I clickbaited you.

I’m not going to write about the shutdown today either. I frankly think shutdowns are stupid and make both sides look bad.

Both sides wanted this shutdown. Democrats needed to look tough and wanted to try to restore health care funding. Republicans wanted to take advantage of shutdown protocols to force even more draconian cuts. (It takes real commitment to pork to make deep cuts to federal programs and still end up spending and borrowing more.) I’m not sure that either is going to get what they bargained for, but I’m also not sure how anyone can deal with an Adminstration that reneges on nearly every deal it makes and thinks it can claw back funds appropriated by Congress in other deals. Unilateral executive action is destroying the foundations of our Republic.

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No, I’m not going to write about that. Instead, I’m going to talk about the Supreme Court. There are a lot of questions about why the Supreme Court seems to be handing Trump so many victories when his Administration is so clearly skirting the law and twisting the Constitution out of shape. People are losing faith in the independence of the Court and are very concerned that the top end of the judicial branch is going to rubber-stamp Donald Trump’s hostile takeover of the Republic.

To understand what is currently happening with the Court, you have to know a little bit about the Court calendar. The Supreme Court usually hears cases in the fall, deliberates over the winter, and hands down decisions in the spring. It is unusual to be getting decisions at this time of the year.

What we are seeing now is action on what is variously called the “shadow docket” or the “emergency docket.” The emergency docket is a list of cases that receive a special, limited hearing if the justices believe that the petitioner will receive “irreparable harm” if action on the case is delayed. Often, emergency docket cases involve applications to stay an injunction issued by a lower court.

An emergency docket petition might not be heard by the full court. Justices have circuit assignments to consider cases that arise from specific states or territories. The justice that has jurisdiction can either decide to issue or deny an order in the case or refer the case to the full court.

The emergency docket is not a new thing. The old trope about a death row inmate receiving a last-minute reprieve from the Supreme Court is based on real appeals on the emergency docket. The term “shadow docket” has only been around since 2015, however. Use of “emergency docket” has become more common in recent years in an attempt to avoid the sinister connotations of operating in the shadows.

The emergency docket is not new, but what has changed is the number of politically important cases on the emergency docket. The number of politically hot shadow docket cases has skyrocketed since Donald Trump first took office in 2017, with his shall-we-say creative interpretations of the Constitution and statutory laws. In the current term, the Supreme Court has acted on no fewer than 29 emergency docket petitions, with another five pending. Of these, 15 were applications for emergency stays of execution. All of these were denied.

I’m not a lawyer (nor do I play one on TV), but in my mind, the emergency docket is roughly analogous to a grand jury. The case receives only an abbreviated hearing, and the full court may not be involved. Unlike a grand jury, where only the prosecution presents evidence, however, the Court does hear from both sides.

To go further with the analogy, the second stage of the process in both cases (pun intended) is an actual trial. After the grand jury hands down an indictment, the prosecutor takes the defendant to court, where guilt or innocence must be proven, and the judge and jury hear far more details about both the facts and the law.

The same is true of cases before the Supreme Court. After the shadow docket cases are handed down, a date is set for oral arguments before the full Court. At that point, all nine justices hear both sides of the story. Just as a jury may not reach the same verdict as the grand jury, the full Supreme Court may not reach the same conclusion after the full hearing as after the shadow docket presentation.

As you read news articles about Supreme Court decisions, there are a few clues to look for that you might be reading about a shadow docket case. With apologies to Jeff Foxworthy, you might be reading about the shadow docket if the article mentions an unsigned order or one with no explanation. If the article says that one justice did or didn’t allow something, you might be reading about the shadow docket. If you are reading about a decision the Supreme Court made between July and March, you might be reading about the shadow docket.

An example of a shadow docket case is Trump v. Cook, Lisa Cook’s attempt to prevent Trump from firing her from the Federal Reserve Board of Governors. In the Washington Post coverage of the decision, we can spot several tells. The subtitle of the article reads, “The justices will hear a case in January over an administration appeal of Cook’s reinstatement by a federal judge,” which indicates that the full Court has not heard the case. Other clues include the phrase “provisional ruling” and the explanation that “the justices offered no detailed reasoning to explain their two-sentence order.” The current order allows Cook to keep her job at least until after the full Court hears the case in January and then hands down the decision in the spring.

The orders in other cases, such as Noem v. Perdomo, in which the full stayed an order from a lower court barring ICE agents from detaining people based on a combination of ethnic factors, or Department of State v. AIDS Vaccine Advocacy Coalition, in which another ruling was stayed that would have required the Trump Administration to spend money appropriated by Congress (imagine that), may eventually be overturned or rendered moot by the full court as well. These orders did not reflect the final decisions of the Court; they only preserved the status quo until the full Court could decide the cases. The final decision could be much different than the shadow docket outcome.

An additional caveat for Supreme Court outcomes is that the Court does not decide all of its cases on the merits. In a significant share of the cases, the Court holds that the petitioner did not have standing to bring the case in the first place, and no decision on the merits is ever reached.

Standing doctrine is complicated, but essentially means that the plaintiff in a case has to have a reason to sue. There must be some harm or damage connected to the person or organization filing the case. Often, the Court denies that there is standing and essentially kills the case. When Justice Kavanaugh wrote a concurrence to the order in Noem v. Perdomo, his primary reason was his assessment that the petitioner lacked standing. While that would be bad news for Vasquez Perdomo, it could mean that a plaintiff with a more solid connection to ICE’s activities could bring a new case to court.

My message to those concerned about the recent shadow docket rulings is don’t give up. In his first term, when the final rulings were handed down, Donald Trump had an abysmal record at the Supreme Court, winning only 22 percent of cases. Despite some recent shadow docket wins, his second-term record isn’t very good either.

Even some high-profile wins, like the birthright citizenship case, were on very narrow terms. In that case, the Court did not uphold his plans to strip children of immigrants of their citizenship. Rather, it upended the practice of national injunctions and sent the case back to a lower court. The citizenship question is now headed back to the Supreme Court.

I have a lot of faith and hope in the Supreme Court to do the right thing on these and other cases, but I’m less hopeful and more concerned than I was a few years ago. While the Court has often held the line and resisted Trump’s abuses of power and unconstitutional actions, some of its Trump-era rulings have been spectacularly bad and dangerous.

And yes, presidential immunity, I’m looking in your direction when I say that. I would not be surprised if the Court doesn’t get a second bite at that apple before Mr. Trump rides off into the sunset.

NEGATIVE JOBS Private employers lost 32,000 jobs in September per the new jobs report. August numbers were revised down to a loss of 3,000 jobs.

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