The Supreme Court is drunk on its own power
(Vox) - A Court that used to prize careful deliberation now seems to care more about making big change quickly.
The Supreme Court of the United States is more conservative today than at any point since the 1930s. It’s also more confident in its own power than any panel of justices since the Franklin Roosevelt administration. And it is quite eager to wipe away foundational precedents that have stood for decades, sometimes without much warning that a transformational decision is around the corner.
Consider the Court’s recent decision upending five decades of abortion jurisprudence. By allowing a Texas law banning at least 85 percent of abortions to take effect, the justices followed none of the procedural norms that their predecessors typically adhered to before upending a famous Supreme Court precedent.
The order allowing Texas’s anti-abortion law to go into effect is one paragraph long. It does not even attempt to engage with the legal questions presented by that law. And it was decided on the Court’s “shadow docket,” a mix of emergency motions and other rushed cases that receive only cursory briefing before they are decided by the justices. In total, the justices seem to have spent about two days pondering this case before upsetting a half-century of law.
As the Atlantic’s Adam Serwer wrote, “neutralizing Roe through normal channels would have taken time, and the Supreme Court’s conservatives did not want to wait.” So the five justices in the majority decided that the ordinary rules did not apply “because they felt like it, and because they don’t believe anyone can stop them.”
This sort of behavior, in which conservative justices hand down sweeping pronouncements while only barely pausing to consider what they are doing, is now a regular affair for the Supreme Court.
The shadow docket, to be clear, is not a new phenomenon. In the past, lower courts would occasionally hand down decisions that were so inconsistent with existing law that the justices needed to intervene in order to preserve their authority. In 2019, for example, the Court temporarily blocked a Louisiana anti-abortion law that was identical to another law the Court had struck down a few years earlier, after a lower court refused to block it.
But shadow docket orders both became more frequent and (the Louisiana abortion order aside) more consistently conservative under President Donald Trump.
Three years ago, Justice Sonia Sotomayor warned that her Court was doing “extraordinary” favors for the Trump administration on its shadow docket. According to University of Texas law professor Steve Vladeck, the Supreme Court issued 28 shadow docket orders blocking lower court rulings against the Trump administration while the Justice Department appealed the case. (Though the Biden administration is still young, a pair of early cases suggest that the conservative Court will not show similar deference to a Democratic president.)
Similarly, at the height of the pandemic, the Court handed down two major, precedent-setting decisions on its shadow docket that revolutionized the Court’s approach to “religious liberty” cases — potentially turning worship services into superspreader events, and gutting a three-decade-old precedent in the process.
If the story here was simply that the justices are taking days to resolve difficult legal questions that they used to ponder for months, that would be deeply concerning. Because the Court has the final word on questions of federal law, errors in a hastily decided Supreme Court case are not easily corrected. Often, these errors can only be addressed by a constitutional amendment or by changing the membership of the Court itself.
But the rise of shadow docket orders don’t simply reveal the impatience of the Court’s conservative majority to remake the law in their own image. These orders are also a symptom of two broader trends within the federal courts.
The first is that the Court’s new majority is increasingly comfortable with its own power, and increasingly hostile toward longstanding doctrines warning judges to defer to elected officials on matters where courts lack expertise. The Court, for example, has started wading into areas such as foreign policy, welfare policy, or the conduct of executive branch agencies where it historically displayed a great deal of restraint.
The second trend is that the political polarization that drives so much of American politics infects the judiciary as well. Often, when the Supreme Court stepped in to block a lower court’s decision against the Trump administration, that lower court order was handed down by Democratic appointees. Now that Biden is in office, Republican litigants seek out Trump appointees who treat many longstanding legal doctrines as if they were illegitimate.
This polarization forces the Supreme Court to resolve conflicts between two very different camps of judges. And the Court, with its 6-3 conservative majority, is hardly a neutral arbiter of these disputes. The growth of the Court’s shadow docket most likely reflects many justices’ impatience to sweep aside previous, left-leaning decisions that they have resented for their entire careers.
Decisions like Roe v. Wade.
The era of judicial humility, briefly explained
If you want to understand the last century of American constitutional law, you have to start with a nearly nine-decade-old conflict between President Franklin D. Roosevelt and the Supreme Court.
Beginning in the late 19th century, the Court handed down a series of decisions sabotaging the government’s power to regulate the economy, and especially the workplace. Often relying on flimsy or completely fabricated legal arguments, the Court struck down federal child labor laws and minimum wage laws. It stripped workers of their right to unionize, and prohibited many laws preventing employers from overworking their employees.
After Roosevelt took office, the Court became a persistent thorn in his side, striking down existing New Deal programs and endangering others with its narrow view of the government’s power to respond to the Great Depression.