PROTECT INSTITUTIONAL LEGITIMACY

“So this is a three-page, single-spaced memo on Letterhead that says, The Chambers of the Chief Justice. And he explains to his colleagues why he thinks the Obama plan needs to be halted. He says it's going to impose enormous burdens on states and on the coal industry. He says there's no time to waste because they're going to have to start complying with the requirements of the Clean Power Plan right away.”

“The act of writing an opinion for a judge is the act of saying, here's why you should trust me. Even if you disagree with this outcome, I'm going to show you my work, I'm going to show you how I got to my answer. And so when the Supreme Court changes its way of operating, and does that so much less, there is truly a risk to the legitimacy of the institution.”

“And where it leads is what we've seen over the first year plus of the Trump administration, where the court is deluged by emergency applications and is spending seemingly half its time on them and is often in very short periods of time ruling for the Trump administration on major questions like immigration, like agency power, like government spending, like transgender troops.”

“Just a few months before all of this, the court had ruled against the EPA in a case involving mercury emissions. That case had been litigated over three years, three and a half years. In the normal Supreme Court process, and nobody had granted the challengers a stay. So, they were starting to comply with the regulation as the litigation goes forward. The Supreme Court rules against the EPA. The next day, the EPA official puts up a blog post and essentially says, very nice you ruled against this Supreme Court. But in the meantime, the rule has essentially gone into effect, and your ruling doesn't mean very much. That seems to drive the Chief Justice crazy.”

“The justices spend a lot of time considering which cases to go into here, and they get briefs on that. And if they decide to hear a case, they get another round of briefs, and supporting briefs, and then they hear arguments, and then they sit together and discuss and vote. And after all this process winds itself out for like a year, they issue a reasoned decision, could be 100 pages long, with lots of concurrences and dissents, and it's the product of great care and deliberation. That's the Supreme Court we're used to. The Shadow Docket short circuits all of that.”

“The Shadow Docket short circuits all of that. It happens in a very brief period of time on thin briefs, no arguments, no in-person deliberations. It gives rise to rulings with scant or no reasoning at all. And over the past ten years, this has really become a major part of the court's business, including in some decisions over the past year or so that have awarded President Trump enormous leeway and power.”

“So the whole thing, as predicted, comes down to Justice Anthony Kennedy, the swing vote, and on February 9th, the fifth day of the debate, he sends a very short note. It doesn't say much at all. It's three sentences. He says he's voting with the chief, and that's it. It's over. The Supreme Court rules five to four, and within hours, the Supreme Court issues its order.”

“Political scientists will tell you that there's more partisan voting on the Shadow Docket than on the Merits Docket. That you're much more likely to see Republican appointees voting in favor of a Republican president and against a Democratic president than on the court's usual docket, than on its Merits Docket. And one example of why this is so and why people, when they're acting fast, might rely on their partisan impulses is in the Biden years, the court voted against Biden on three different emergency applications.”