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Opinion The Supreme Court’s dangerous ‘shadow docket’

The Supreme Court building. (Craig Hudson/Bloomberg)

David Cole is national legal director of the ACLU and a professor at Georgetown University Law Center.

The Supreme Court received well-deserved praise for rising above partisan division this term. In controversial cases involving President Trump’s tax records, protections for “dreamers” from deportation, LGBTQ equality and abortion, one or more conservative justices joined the liberals to reach results that departed from the 5-4 Republican-Democrat divide one would expect if the justices simply voted according to the party of the presidents who appointed them. The court’s willingness to be guided by legal reasoning rather than political predilection is central to its legitimacy.

But in a much less visible area of its work, commonly known as the “shadow docket,” the court has increasingly split along party lines. Every year, the court considers emergency motions for stays of lower-court orders. It decides these cases without oral argument, often in a matter of days or even hours. In such cases, it typically offers no explanation for its reasoning, even when dissenting justices voice serious objections, and even when the court is effectively overturning the unanimous decisions of lower courts.

Consider one recent ruling: In a lawsuit the ACLU brought on behalf of inmates particularly vulnerable to covid-19 in an Orange County, Calif., jail that had seen hundreds of infections, a federal court found that the jail had knowingly failed to follow safety measures recommended by the Centers for Disease Control and Prevention — including social distancing, regular testing, and quarantining of people with confirmed or suspected cases. Finding that this conduct violated both the Constitution and federal disability law, the court issued a preliminary injunction requiring the jail to keep those in its custody safe. The court of appeals twice unanimously denied the sheriff’s request for a stay of that order, so the sheriff sought Supreme Court review.

The Supreme Court has said that it should intervene in such situations only in extraordinary circumstances. The party seeking such relief must show that the court is likely to grant review and reverse, and that it will suffer irreparable harm if it has to wait to pursue the ordinary appeals process. The sheriff’s petition did not even cite that standard. The order it was appealing was no different from countless preliminary orders in prison conditions cases, which the Supreme Court rarely reviews. And, perhaps most astoundingly, the sheriff did not even appeal the lower court’s conclusion that the jail had violated federal disability law, a legal basis sufficient in itself to support the injunction.

Yet the Supreme Court granted the stay, by a 5-to-4 decision, with all the Republican-appointed justices in the majority. Justice Sonia Sotomayor wrote an eight-page dissent, noting the reasons the case did not meet the court’s own standards for interfering.

So why did the majority grant relief? Troublingly, we can’t answer that. Following their common practice, the five justices who voted to issue the stay offered no reasons.

In July, the court, again by a 5-to-4 decision, granted an emergency stay from an order to delay the federal execution of Wes Purkey. A unanimous court of appeals had found that Purkey, who suffered from dementia, should not be executed until it was determined whether he was competent. The Supreme Court issued a stay, again without issuing a single word of explanation.

The ACLU has increasingly seen its victories in the lower courts erased by this tactic. The court has issued emergency stays of lower-court orders barring Trump from building his border wall — after Congress refused to appropriate the funds Trump requested for it. It has similarly allowed Trump policies designed to deter people from applying for asylum to take effect despite lower-court orders blocking them as illegal.

And the court, in the midst of the pandemic, has seven times used the same process to halt efforts to require states to maintain safe voting opportunities

Sotomayor recently criticized the “notable frequency” with which such supposedly extraordinary stays are now being granted. Yet with a presidential election on the horizon, and many cases pending involving voting rights, we can expect to see more.

It is, of course, necessary to have a procedure for true emergencies. But is a preliminary order that a jail follow CDC guidelines a true emergency? Was it necessary to execute Purkey before the courts even had an opportunity to assess whether his dementia rendered him incompetent to be killed? This relief should be restricted to the most egregious cases truly requiring expedited action, yet it is increasingly being applied to run-of-the-mill disputes.

And why can’t the Supreme Court give reasons? The lower courts also decide these “emergency” motions, but they always explain their thinking. The requirement to give reasons is central to the rule of law. It ensures that judges rely on principled arguments, not gut judgments. It disciplines judges by requiring them to act consistently across similar cases. It is what distinguishes law from politics. It hardly seems a coincidence that the same court that rose above partisan divides in its written decisions has increasingly split along party lines when no explanations are offered.

The justices are misusing the shadow docket. At the very least, their reasoning should not remain in the shadows.

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