Antithetical to Reasoned Decisionmaking

• Author: Achinthi C. Vithanage
• Position: Associate Director, Environmental Law Program Elisabeth Haub School of Law
• Pages: 31-31

JANUARY/FEBRUARY 2022 | 31

Reprinted by permission from The Environmental Forum®, January/February 2022.

Copyright © 2022, Environmental Law Institute®, Washington, D.C. www.eli.org.

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SI DE BAR

Antithetical to Reasoned Decisionmaking

THE tale of two dockets is

not one that is often told

in law schools. Indeed, as

students dive into the mechanics

of the nation’s highest court, one

learns only of the merits docket.

This is the ordinary nature of the

Supreme Court’s proceedings,

where cases are granted review by

four justices and which subsequent-

ly proceed to months-long brief-

ings, oral arguments, and a majority

opinion with detailed explanations

for a given decision. But until re-

cent years, the non-merits docket,

with its fondness for caseload man-

agement, or the issuance of minor

routine orders such as time exten-

sions, was hardly newsworthy.

Today’s non-merits docket, how-

ever, contains a tale revealing the

worst of times in the High Court’s

jurisprudential history.

This tale of two dockets describes

the extraordinary way in which

the Supreme Court can make stay

orders, without substantiation or

transparency. Granted on rare his-

toric occasions, emergency stay or-

ders had been by no means a regular

practice of the Court. But today, the

justices are increasingly willing to

permit or block agency action with-

out explanation, by simply granting

or denying motions to stay.

The above practice is the shadow

docket, a phrase coined by Professor

William Baude. Recent expanded

use of the non-merits docket in this

way rings warning bells for many.

Indeed, the notion of unreasoned

court orders seems antithetical to

one of the core elements of the rule

of law, one often touted by the Su-

preme Court in the administrative

context: the duty to engage in rea-

soned decisionmaking.

Notwithstanding Supreme Court

Justice Samuel Alito’s recent denial

of anything “shadowy” going on in

the Court’s use of this procedural

function, there are dark implications

for the environment. Recall the Su-

preme Court’s surprising interven-

tion with the Clean Power Plan rule

in 2016. In overruling the D.C. Cir-

cuit Court’s decision to keep EPA’s

regulation to cut carbon emissions

from power plants in place pending

further review, Chief Justice Roberts,



Court’s history, issued a stay on

regulations before an initial review

was conducted by a federal appeals

court. No arguments were heard,

nor a formal opinion given by the

Court. However, four justices did

feel compelled to note their objec-

tion to the order.

Or recall the 2018 Supreme

Court stay order, issued without

explanation, which effectively halted

discovery and trial in the Juliana

case, a constitutional climate lawsuit

brought by youth plaintiffs against

the U.S. government.

In 2019, when the Sierra Club

secured a win against the Trump ad-

ministration’s plan to fund the U.S.-

Mexico border wall with Defense

Department funds, the Supreme

Court intervened by granting the

government’s application for a stay

with a mere sentence providing the

reasoning for the decision. The re-

sult: the building of environmentally

destructive barriers across wildlife

refuges, national monuments, public

land and waters, and through com-

munities in multiple states.

In short, the multitude of stay



is irregular. The tilted appear-

ance of those decisions in favor

of certain administrations is ap-

parent. The lack of reasoning and

transparency in those decisions is

unbecoming of the highest arbiter

of this land. The shadow docket

is, unmistakably, a cause for con-

cern for an administration seeking

strong environmental regulation.

While the tale of two dockets

seems to be here to stay, the tale

can certainly be retold. The Biden

Commission, tasked with exploring

Supreme Court reform, recently

concluded its review and included,

among its suggestions, an invitation

to the Court to consider proposals

“that may increase transparency,

improve procedure, and generate

more visible adherence of judicial

ethics.” Indeed, recent actions by the

Court, such as the accompaniment

of its refusal to stay Maine’s vaccine

mandate, with concurring and dis-

senting opinions, provides a glimmer

of transparency and reasoned deci-

sionmaking.

Whether this marks the begin-

ning of a trend bringing the non-

merits docket out of the shadows, it

is too soon to tell.

“is expanded use of the shadow

docket rings warning bells for

many. Indeed, the notion of

unreasoned court orders seems

antithetical to one of the core

elements of the rule of law”

Achinthi C. Vithanage

Associate Director, Environmental

Law Program

Elisabeth Haub School of Law