Chamber of Secrets: The Supreme Court's habit of Deciding hugely important cases without briefings, arguments, or even a word of explanation threatens democracy.
|Stephen Vladeck's "The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic"
In December 2022, the Supreme Court's public affairs office made a discreet announcement about procedures for the end of the 2022-23 term:
For the remainder of this Term, the Court will resume its traditional practice of announcing merits opinions in open Court. Consistent with past practice, the live audio feed will be limited to oral arguments, and the audio of opinion releases will be recorded and available from the National Archives at the beginning of the next Term. The provision about the oral announcement of opinions--no audio available until months later--is almost the only feature of "traditional practice" that survives the coronavirus pandemic and the Donald Trump years unchanged. In the past, oral argument was not live-streamed, and recordings were only made publicly available days after the session. Opinion announcements were (and still are) withheld until the following October.
These two moments--argument and announcement--mark the only occasions on which the Supreme Court, one-third of the constitutional structure of our government, even tries to explain itself to the public it nominally serves.
The Court began live-streaming oral arguments during the pandemic, and so far it has not reversed the practice. But announcements will still not be available to the public until a time when that public will no longer be paying attention. There is no logistical reason for this, and plenty of good arguments against it. Opinion announcements are among the most dramatic moments of a given term. They are not empty drama, nor are they a distraction: Such moments provide a much-needed glimpse of the Court's mostly shrouded interior processes, and of the passions of the individual justices.
Some progressive legal scholars have coined the term demosprudence to underline that the opinion announcements are the only time that the Court's members directly address the public. Clearly, however, the justices do not want the public to see or hear their words. This particular Court does not conceive of itself as belonging to the people.
Since Trump's election in 2016, the Court has acquired four new justices; a new format for oral argument (formerly confined to one hour, oral argument now meanders to a conclusion when everybody runs out of steam); a new concept of precedent (previous cases are binding unless there's something about them the new conservative majority just doesn't like); and a new methodology for its constitutional jurisprudence (the "history and tradition"--or, more cynically, the "Look, I found something in Bracton's De legibus et consuetudinibus Anglice that agrees with me, case closed!"--test).
Also consequential is an unannounced procedural change: The Court makes more and more important decisions through its so-called shadow docket, in which it grants or denies orders to decide, delay, or reverse lower-court decisions. These orders are often only one sentence long and announced in written form either on regular Court days or after hours. They often include no explanation of the Court's reasoning and do not always record individual votes. Always available to the Court for genuine emergency cases (such as last-minute appeals from death row inmates), the shadow docket has become a major way in which the new Court shapes the law and steers the lower federal courts--almost uniformly in an extreme-right direction.
This semisecret aspect of the Court is the subject of The Shadow Docket by Stephen Vladeck, a law professor at the University of Texas. As a Court observer, Vladeck is a phenomenon. He teaches constitutional law and the federal courts; he has also argued three significant cases (on military law and border security) before the Court. (Because Vladeck is six foot eight, the Court's lectern had to be specially raised to accommodate him.) He is a contributing editor of Lawfare, the prominent national security blog, and a cohost of the National Security Law Podcast. He is also a legal analyst for CNN and a regular contributor to Slate. I suspect he is studying brain surgery in his spare time.
The Shadow Docket is a work of profound respect for a Court he plainly loves, and is intended as a warning that it is losing its way, and risks thereby forfeiting the place it has long held in American law and life. And the book places both the current "shadow" controversy and the Court itself within a history quite different from the reigning belief that the Framers had a clear vision of the Court as a check on the elected branches. Instead, beginning with Chief Justice John Marshall's 1803 power grab in Marhury v. Madison, the Court's history is largely a tale of an institution that is barely mentioned in the Constitution but has used ambiguity and guile to aggrandize itself.
The term "shadow docket" was minted in a 2015 law review article by the University of Chicago law professor William Baude. It refers to the Court's "non-merits docket," or "orders list,"...
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