Hiding in the Shadow Docket

 

The increasingly pitiful Supreme Court of our nation has, since the installation of the current regime, been busy accepting an extraordinary number of "emergency applications" it's made and duly issuing the orders it's requested.  

Because such applications are, supposedly, to be made and accepted only in emergency situations where briefing, oral argument and written opinions as in normal cases would take too long and so fail to timely address the emergency, orders granting or denying the applications need not be explained.  No written opinion or rationale need be provided.  The Justices, like gods, merely decree.  We're not entitled to know why or how they came to do so.

These Jovian orders comprise what is known as the shadow docket.  While there have in the past been very few matters decided in this abrupt, mysterious manner, the current Justices seem to delight in exercising judicial authority in this fashion.

No doubt it's much easier to decide cases when no reasons for a decision need be given.  And, certainly, it can be convenient in other ways as well.  For example, if a case raising similar issues in similar circumstances should come before the Court, but a majority of the Justices don't want to issue the same order issued during the "emergency", they can simply maintain that the rationale which applied but was not disclosed previously didn't apply in the new matter.  Who could contest such a claim?

Better yet for mthem how may the Justices be successfully criticized for a decision they made when the reasons for the decision cannot be known? It may have been made for the worst of reasons, or no reason at all, for all we know.

Do the Justices lurking in the shadow docket feel something of a thrill, being able to make unreviewable orders as they please, with no need to account for them?  If so, let's hope they don't find it addictive.

Of course these decisions made in the shadows of the shadow docket do little or worse for litigants, lawyers and judges, trying to ubderstand them. They benefit only the regime and the Justices who cater to it. Lower courts, lawyers and litigants are left in the dark because the Justices cannot be bothered to explain the orders they make.  Merely knowing that an application has been granted or denied provides little guidance.

This deliberate practice of issuing orders for no apparent reason is at the least irresponsible and selfish.  It's also cowardly, I think.  If your going to decide matters of great importance which are unreviewable, you should have the courage to explain and defend those decisions.  It's no wonder the reputation of the Supreme Court is in decline.