Recent Developments Shed Light on the Supreme Court’s “Shadow Docket” Practice
Two significant events last week have brought attention to the ongoing debate surrounding the U.S. Supreme Court’s approach to emergency-relief cases, often referred to as the Court’s “shadow docket.” The first event was Justice Ketanji Brown Jackson’s delivery of the James A. Thomas Lecture at Yale Law School, where she criticized the emergency-relief docket. The second event was the New York Times’ disclosure of internal memos among Supreme Court Justices from 2016, which shed light on the Court’s decision to block the Environmental Protection Agency’s (EPA) Clean Power Plan.
Justice Jackson’s Critique of the Emergency-Relief Docket
Justice Jackson’s lecture at Yale Law School was her first major appearance at the institution, and she used the occasion to express her concerns about the emergency-relief docket. Her critique closely tracked her dissenting opinion in Noem v. Doe, which highlighted the need for more transparency and explanation in the Court’s decision-making process. Justice Jackson’s lecture can be viewed and heard online, and it provides valuable insights into her thoughts on the matter.
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The New York Times’ Disclosure of Internal Memos
The New York Times’ disclosure of internal memos among Supreme Court Justices from 2016 has raised questions about the Court’s approach to emergency-relief cases. The memos, which were written in connection with the Court’s decision to block the EPA’s Clean Power Plan, show that the Justices were deeply divided on the issue. The Court’s decision to block the plan, which was upheld by a 5-4 vote, has been seen as a pivotal moment in the modern shadow-docket era.
Criticisms of the Court’s Approach
Both of these events have led to criticisms of the Court’s approach to emergency-relief cases. Some have argued that the Court is not being consistent in its decision-making, with the conservative Justices being more willing to grant interim relief in cases involving Republican administrations. Others have argued that the Court is not being sufficiently deferential to lower court decisions, with Justice Jackson highlighting the importance of preserving the “status quo” in her lecture.
Why Lower Court Decisions Should Not Be Given Great Weight
However, it is worth considering why lower court decisions should not be given great weight in emergency-relief cases. In many cases, the crucial contested questions are legal rather than factual, and the Supreme Court is better equipped to handle these types of questions. For example, in the case of the EPA’s Clean Power Plan, the dispositive question was whether the plan was authorized by the Clean Air Act, which is a question of statutory interpretation. In such cases, the Supreme Court’s decision should not be influenced by the lower court’s decision, but rather by the Court’s own analysis of the legal issues at stake.
Irreparable Harm and the Government’s Interest
Another criticism of the Court’s approach is that it is not taking into account the irreparable harm that may be caused to the government and the public when interim relief is granted. Justice Jackson has argued that the government does not suffer irreparable harm when it is forced to wait to enforce its policies until the litigation has been resolved on the merits. However, this argument is not persuasive, as it ignores the fact that the government and the public may suffer real harm when the implementation of lawful policies is delayed. In cases where there is substantial irreparable harm on both sides, the Court should consider the likelihood of success on the merits in making its decision.
Persuasive Criticisms of the Court’s Approach
There are, however, some criticisms of the Court’s approach that have merit. One is that the Court is acting without adequate briefing and argumentation. While emergency cases necessarily require expedited procedures, this does not mean that the Court cannot ask for more meaningful briefing and hold expedited oral arguments before ruling on the emergency request. Another criticism is that the Court is issuing rulings without much explanation, which can lead to a lack of transparency and accountability. To address these concerns, the Court could issue more detailed explanations of its decisions, even if they are expedited, and provide more opportunities for briefing and argumentation.
Conclusion
In conclusion, recent developments have shed light on the Supreme Court’s “shadow docket” practice, highlighting the need for more transparency and explanation in the Court’s decision-making process. While some criticisms of the Court’s approach are misguided, others have merit and highlight the need for reform. By addressing these concerns, the Court can increase transparency and accountability, and ensure that its decisions are made in a fair and principled manner.
- The Supreme Court’s approach to emergency-relief cases has been criticized for lacking transparency and explanation.
- Justice Jackson’s critique of the emergency-relief docket highlights the need for more consideration of the “status quo” in the Court’s decision-making process.
- The Court’s decision to block the EPA’s Clean Power Plan has been seen as a pivotal moment in the modern shadow-docket era.
- The Court should consider the likelihood of success on the merits in making its decision, rather than relying solely on the lower court’s decision.
- The Court should provide more opportunities for briefing and argumentation, even in emergency cases.
The Court’s approach to emergency-relief cases is an important issue that requires careful consideration. By addressing the criticisms of its approach and implementing reforms, the Court can increase transparency and accountability, and ensure that its decisions are made in a fair and principled manner.