SCOTUS Matters: Shadow Docket Again etc.

Book: There is a long new bio of Justice John Harlan. I checked it out and it was too long for me. Also, skimming, it repeatedly was too gung ho, not wanting to criticize him for some of his imperfect rulings. Someone else, a lawyer who is very into constitutional history, said he liked the book.

The Republic According to John Marshall Harlan by Linda Przybyszewski is a shorter (about two hundred pages) and more academic account from some time back (think Clinton Administration).  It is not comprehensive, though it covers the basics, and general themes.  The academic flavor is not too thick overall.  And, it is a good honest accounting of how he was a person of his time, not just some "hero."

Nearly seven months after his inauguration, President Joe Biden announced on Wednesday that he has nominated Elizabeth Prelogar to serve as the U.S. solicitor general, the federal government’s top lawyer at the Supreme Court.

Amy Howe provides her usual good account. This includes reporting that appears to explain the reason for the delay.  The White House, says Amy Howe, supported a "more diverse" candidate while the DOJ liked Prelogar (who is after all a woman, which alone is notable).  I noticed on Legal Twitter a lot of support for her, especially among woman law professors and appellate attorneys.  Her name is pronounced "pre-logger."

The problem is that California Supreme Court Justice Leondra Kruger (cited as the DOJ choice) twice rejected the offer.  After all, she already had a nice job.  One added wrinkle that to me seems relevant is that Kruger is often on short lists, maybe at the top, of potential Supreme Court (the U.S.) nomination lists.  SG (see Kagan) is one route to prepare.  

Anyway, Prelogar has already had a lot of experience, arguing nine cases in front of the Supreme Court during the Obama/Biden Administrations.  She seems a fine choice and again many women lawyers are cheering her on.  And, she will be cheering on an acting SG, given the rules in place now require she not serve the position until confirmed. 

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I was ready for nothing much at all happening at the Supreme Court, but they decided to ruin that again.  

A false non-start was Barrett on her own (not referring it to the whole court; Breyer also disposed of a religious liberty suit this way) rejecting a request for an injunction regarding a university vaccination mandate. When an old conservative and two Trumpies below reject it, you know you are in trouble.  The key thing there, I think, is that there are religious exemptions. That would be the last nail in the "no shot" coffin.

But, later in the day, we do have a shadow docket ruling with Breyer dissenting for the liberals.  After two courts below rejected the claim, the brief unsigned order partially blocked for now a New York eviction moratorium, one that was going to run out at the end of the month anyway. Is this a "I'll go this far, but I won't do that" message after the last move by five of them not to block the federal moratorium?

What exactly was decided? The basic concern, if baldly stated, was that a tenant could declare they were at risk without the landlord having a hearing. But, the moratorium is not permanent.  And, the current rule runs out at the end of the month.  And, tenants can have other arguments -- they can, for instance, prove in court that they are at risk.  My state senator tweeted to say her office was analyzing just what the decision means.  See also here, which provides some more details of what is involved.

So, what exactly is the point of this move, which is an irregular stepping in to stop normal appellate process?  Steve Vladeck, who testified about it to the Presidential Supreme Court Commission (but doesn't really want to DO anything about it much except maybe nudge them), about the shadow docket put the move in context on Twitter.  From various tweets:

In the first 15 Terms of the Roberts Court, #SCOTUS issued a grand total of 4 emergency injunctions pending appeal (in part because the standard for granting one is so high).

This is now the *7th* injunction the Court has issued since Justice Barrett’s confirmation last October.

Justices Breyer, Sotomayor, and Kagan have dissented from all seven; Chief Justice Roberts publicly dissented from three of the first six. This is a big part of why the “shadow docket” is so significant these days: major, divisive rulings coming down with little to no reasoning.

This is not just about the Big V, which did not just start "last October," but a sign of how that sixth vote matters. Roberts did not want to change the old rules, and consistently rejected interfering with local action (be if harming voting rights or somehow burdening religious liberty) during COVID. But, now with packed Court girl, things change.

Major things, including changes of the law (if in a hazy way that they can tinker with later if they wish*), happen via this abbreviated process. It a tad ironic that the order here -- a bare discussion without normal judicial process -- is concerned about due process.  A sound application of due process of law is not unsigned orders interfering with normal practice of appellate litigation except in extraordinary circumstances. 

I keep on drumming the message on Twitter, yelling at the void or not, that this is a packed Court. There was a bit over at Talking Points Memo, voicing the concern/conclusion of many, that the Supreme Court would strike down a new Voting Rights Act, at least in part. It should be underlined here, however, that any voting rights legislation will have multiple parts.  SCOTUS won't toss it all out.  But, part matters.

We need, over and over again, scream how ILLEGITIMATE that is. They might have the raw power, but that is and was never the only test of legitimacy in this country from even before it was one.

Criticism can be made regardless, but an important part of entrusting governmental officials with broad discretion is relying on basic legitimacy of their appointment and practices.  Bush v. Gore and Roe v. Wade are not similarly applied exercises of judicial power, even if (Thomas might give some trouble) both courts were put together basically without taint.

An expansion of power (such as the size of the infrastructure/budget packages of the Democrats) will be opposed by some generally.  

(It should go down a bit better if there is a real effort made to do so in a reasonable or even bipartisan fashion.  I think in recent memory, Democrats actually did that more.  "Both sides" do it is bullshit at some point, moving past some general bland statement of how things work.)

But, when done by dubiously chosen individuals, this (quoting SV again) becomes even more troubling to me:

Updating shadow docket data for #SCOTUS's October 2020 Term in light of yesterday's ruling on the NY moratorium. That's now *34* rulings this Term from which the three D appointees publicly dissented (22 on the shadow docket); and 18 shadow docket rulings changing the status quo.

I am not going to be pleased when this Supreme Court changes the law using normal judicial processes.  But, this conservative supermajority, a result of packing and other bullshit, going a step further, using the "shadow docket" like this or (potentially) interfering with basic voting rights, will be a step beyond.  And, we have to constantly vocally say so.

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* Rick Hasen on Twitter suggests that Roberts appreciates the shadow docket to the degree he has to deal with a new five person conservative majority to his right since it allows stuff to happen off the main stage.  

We saw the result of this in Fulton, where he wrote a limited opinion that to three conservatives disrespected a major shadow docket case. This is one value of brief orders without much analysis, not always even having five clear votes on every detail.  Orders not signed, to give them one more hint that nothing much is happening. Hints, to be clear, aren't actual law.