SCOTUS Watch: Voting and Reform

Steve Vladeck (who wrote a book on it) has noted that the justices have a much busier than usual [not clear how it compares with last year; that is when the uptick truly began] "shadow docket" of note this summer. 

The shadow docket is a fancy name for appeals, particularly in notable cases (summer order list disposes of insignificant ones), which require some resolution. Will Baude wrote of it in a well-known article in 2015. Baude noted that the shadow docket was "a range of orders and summary decisions that defy its normal procedural regularity."

For instance, the Supreme Court handled a shadow docket (often called the "emergency docket," to suggest there is the need for quick resolution) case last week involving a challenge to Biden's new regulations of trans students. The justices split 5-4, agreeing to hold up many regulations in around half the states, though they agreed on a minor matter. 

The shadow docket might be an area that Congress and the president can think about when addressing court reform. Chris Geidner suggested Vice President Kamala Harris address it in her convention speech. As Vladeck notes, the Supreme Court could do more to restrain lower court action that makes the shadow docket such a potential place for action. They do not. 

She did not though she did reference abortion, which is definitely related. She has supported Biden's three reform proposals. Other than ethics reform, they are long shots. But the tenor of his remarks matters too. Biden made clear the stakes when he explained what he planned to focus on in his final months:

And I’m going to call for Supreme Court reform because this is critical to our democracy — Supreme Court reform.

The Vice President did discuss voting, including supporting voting rights legislation. The Supreme Court in Shelby County v. Holder held that the preclearance mechanism in the Voting Rights Act of 1965 was unconstitutional because it was out of date. Congress could update it but that would require major legislation and breaking the filibuster. 

The inability to block new voting limits in "covered" jurisdictions has led to many more restrictions. The Supreme Court's latest shadow docket opinion addressed proof of citizenship laws in Arizona, parts of which are covered by the Voting Rights Act. Rick Hasen notes such laws pointlessly threaten the voting rights of thousands of people. 

The upshot is that people who have registered with the state-only form are going to have to either provide documentary proof of citizenship if they want to vote in all elections in Arizona in the fall, or they will be able to register using the federal form without documentary proof of citizenship only for President, Senate, and Congressional races.

Hasen parses the opinion or rather order (see also, Ian Millhiser and Amy Howe). The order simply notes what was decided and who voted for what path. 

No one actually explained their decision-making. Federal judges, including David Tatel in his latest book (Vision), repeatedly tell us that judges are different. They explain. Not always.

(Not explaining helps cover up many sins as shown by this discussion that covers multiple problems with the result. Those who keep track of these things, for instance, flagged the "Purcell Principle," which is more of a guideline, as they say.)  

Like Caesar's Gaul, the Supreme Court split in three ways. Justice Barrett (who from time to time cautions restraint regarding the shadow docket) joined the liberals. They would not stay in a lower court that held up the restrictions. Thomas, Alito, and Gorsuch would have allowed the restrictions to go into place. 

A majority allowed one restriction to go into place. Millhiser, the most vocal liberal of the bunch, explains the result could have been much worse.  Roberts and Kavanaugh did not publicly vote. 

Nonetheless, it takes five votes to obtain a majority. They must have joined with the three conservatives to allow the one restriction to go into place as the litigation continues. Meanwhile, at least one justice had to join with the four to hold up the rest. Need not be both.  

The result allows voters to avoid the restriction in federal elections by using a federal form. Arizona is a swing state with an important Senate seat up for a vote in November. State elections matter (including an abortion referendum) but the stakes can be higher on the federal side.  

Ultimately, this is merely one step in a longer journey. The litigation continues. The biggest game here is the possibility of federal voting rights reform. The key there is winning a trifecta in the 2024 elections. The courts also play an important role as seen by this very decision.  

The people involved in selecting judges and overseeing federal voting rights litigation are yet another thing to factor in. We see the importance of each branch, executive, legislative, and judicial. 

Court reform again is on the docket in November. Kamala Harris has shown her distrust of the Supreme Court. We shall see how she handles things now that she is a presidential candidate.