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Behaving Badly
Books & Such

Behaving Badly 

In The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (2023), constitutional scholar Stephen Vladek argues that since the mid-2010s, the Supreme Court of the United States has been deploying their vast discretionary powers in an unprecedented flexing of judicial muscle.

A great deal of media attention is paid to the Court when they agree to hear a case, later hear the arguments, and then finally issue their opinions. In these “merits” cases, majority opinions, concurring opinions and dissenting opinions lay out the nature of the issue in terms of the Constitution and the law. Written and published opinions serve lower courts in future decisions, stand as guidance for lawmakers and the limits of their power in future law making decisions, and offer to all of us the confidence that the Court’s work is legitimate.

More than any other time in our history, merits cases make up only a small portion of the Court’s actual decisions. Today, the vast majority of the Court’s work is done in the shadows behind closed doors and the decisions they make are all-too-often put forth without explanation. These current developments are contrary to long-standing judicial practices. Vladek argues they amount to an “institutional crisis.”

Understanding how the Court has evolved is essential to understanding and responding to the threat we face today. As a civics instructor, I paid special attention to the unique role and structure of the United States Supreme Court. Unlike the other two branches whose members are subject to the often-fleeting whims and political preferences of the people, members of the Supreme Court are meant to be rigorously scrutinized for high character and objectivity; and then set free to think and act in terms of the dictates of the Constitution and the law without regard to the political expediencies of the day and their own views toward them.

If the process of selection operates efficiently, there should be little to fear when entrusting justices with so much discretionary power. Indeed, this is the rationale that justifies a life-time appointment.

An original example of how the Court functions arises from the early days of our nation. The fundamental power of the Court—the power to declare laws unconstitutional —is not explicitly stated in the Constitution. Yet, the Court itself decided—in Marbury v. Madison, 1803—to do just that.

“The judicial Power of the United States, shall be vested in one supreme Court,” as stated in Article III of the Constitution, was understood to bestow judicial review (not stated in Article III) which in turn carried with it the power to review laws (not stated in Article III) and, through the general understandings of judicial review at the time, the right to declare laws in violation of the Constitution and therefore strike them down (definitely not stated in the Constitution).

Despite the lack of an explicit mandate, the Court has maintained this ultimate power for 220 years, largely through explaining their reasoning to all of us along the way. We need not agree with what they decide but—and this, I believe, is the moral source of their legitimacy—we deserve to understand the arguments underscoring their decisions. Over the course of this long history, the increasingly complex practices of the Court have evolved in much the same manner as the power of judicial review; that is, with deference to the high esteem with which we hold the members of this body and the respectably objective manner in which they exercise their discretionary powers.

By taking a long historical approach to understanding the evolution of the Court and its increasingly powerful role in our lives today, Vladek argues with clarity and purpose that the practices, procedures and perceived powers of the Court are not written in stone—they are barely written in the Constitution.

It is important to note that the discretionary powers of the Court have been bolstered through legislative action. The Judiciary Act of 1925 greatly expanded the Supreme Court’s power including the ability to choose which cases it would hear while the use of this power—granting a writ of certiorari or “cert” —would evolve over time. Today, the Court receives roughly 7000-8000 cases appeals to be heard each year. Cert is granted to about 1% of these appeals; those scrutinized with public debate and written opinions from the Court.*

In the 1930s, the Court adopted the Federal Rules of Civil Procedure, which includes the power to grant summary judgment: allowing the Court to make a decision based upon the facts presented without the need for a trial.

The Supreme Court State Selections Act of 1988 granted the Supreme Court cert power over state courts. Not only could the Supreme Court now pick and choose which cases to hear, in both state and federal courts, it could do so at any time after a case entered the appeals process. Thus was born the Court’s power to grant “extraordinary relief” before lower court decisions had even been made.**

Prior to the 2010s, the use of summary judgment, providing extraordinary relief, and the denial of cert were used to streamline the Court’s work and ensure that the most pressing issues of the day were being addressed; in other words, with discretion exercised by  a publicly respected and legitimate Court.

Then, along came Donald Trump.

Vladek offers an illuminating example of Trump’s attitude toward the Supreme Court and his willingness to exploit their discretionary powers during the early months of his presidency. Following a “June 2017 [Muslim] travel ban [emergency relief] ruling,” Vladek writes, “twenty –five of the twenty-six grants of emergency relief to the Trump administration would come with no opinion from the Court, and thus no explanation for why the justices were either putting policies blocked by lower courts back into effect or freezing lower court mandates: no explanation of how the lower court erred; no explanation of how the policy was likely to be upheld; no principles to guide future judges and decision-makers.

The use of summary judgment and the denial of cert have also been exercised with increasing frequency under the same shadow.

Vladek demonstrates the unprecedented implementation of this discretionary power: “[I]n just four years Trump’s solicitors general [the Justice Department’s point-person to argue before the Supreme Court] sought emergency relief from the Supreme Court a total of forty-one times – a more than twenty-fold increase over Bush’s and Obama’s solicitor generals combined.”

With these decisions made in the shadows, Vladek laments, “We are simply left to speculate about why the Supreme Court… all of a sudden decided to issue [emergency relief] on such a regular basis.”

As Vladek offers time and again throughout The Shadow Docket, the answer is crystal clear: the abuse of discretionary power by the Supreme Court amounts to an unbridled politicization of the judiciary.

The numbers have changed and so have the Court and its unchecked behavior. I have written before regarding the tempering power of Chief Justice John Roberts whose respect for the traditions of the Supreme Court has often steered him toward faithfully interpreting the Constitution and the law even when those interpretations go against his personal conservative views.***

With the arrival of Justice Amy Coney Barrett to the bench in 2020, during the waning days of the Trump administration, Roberts lost the numbers that made this possible. Joining Samuel Alito and Clarence Thomas, Trump’s three appointees— Barrett, Neil Gorsuch, and Brett Kavanaugh – have established a five-vote ultra-conservative majority without the “moderate” Roberts that is well on its way to undermining 70 years of civil rights progress, among other agenda-driven activity, while paying little regard to the traditions and practices of the Court.

And, even as Roberts has dissented with the opinions of his fellow conservatives on occasion, he still represents a sixth vote when it comes to granting cert.

This development undermines a practice known as the Rule of Four, which suggests that even if a majority of the justices disapprove of hearing a case, a significant minority can, as Vladek might say, bring the case out of the shadows.****

With only three liberal justices now presiding—Elena Kagan, Sonia Sotomayor, and the first Black woman to serve on the Court, Ketanji Brown Jackson—the docket itself is now completely in the hands of the six conservatives; at least two of whom arrived to their seats on the bench under shady circumstances.

“Looking at the cases as a whole,” Vladek surmises, “the conclusion is all but inescapable that the Court was just as responsible for enabling the rise of the shadow docket as the Trump administration—and that it did so in a manner that specifically tended to advance Republican policies rather than conservative legal principles.”

These shadow decisions have real world consequences and impact millions of Americans and others. “From immigration to elections,” Vladek writes, “from abortion to the death penalty, from religious liberty to the power of federal administrative agencies, the Supreme Court has, with increasing frequency, intervened preemptively, if not prematurely, in some of our country’s most fraught political disputes through decisions that are unseen, unsigned, and almost always unexplained.”

Trump is gone, while the Court he fashioned is still with us; perhaps for a very long time.

Vladek offers that the solution to this dilemma rests with Congress reasserting its role in establishing the standards and practices of the Court. Despite conservative assertions that this would violate the separation of powers and the independence of the judiciary, this type of legislative action could simply dial back previous legislation that empowered the Court’s discretionary behavior in the first place.

I’ll add to this that even as recent calls for impeachment of the president were measured against the standard of  “high crimes and misdemeanors,” Article III states clearly that justices on the Supreme “shall hold their Offices during good Behaviour…”

After absorbing Stephen Vladek’s compelling arguments, I suggest that we simply consider whether some of these justices have “behaved badly.”

Regardless, whether through legislation or impeachment, it is only through the arousal of the people—by reading Vladek’s book perhaps—that the abuses of the Supreme Court can be checked.

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