Remarkable reporting from the New York Times provides a peek behind the curtain of the February 2016 rulings that ushered in the modern emergency docket. And what it reveals is pretty discouraging.
Thank you for your analysis of these disclosures. They show to me, at least, that behind closed doors CJ Roberts is closer in temperament to JJ. Alito and Thomas and has a willingness to be an advocate, and a pointedly adversarial one at that, for big business in general and the fossil fuel industry in particular. I am (naively?) disappointed. No more presumption of impartiality for CJ Roberts.
"The Court is deciding massively important questions not just out of public sight, or through unsigned and unexplained rulings, but with remarkably cryptic behind-the-scenes deliberations, too. These decisions are being made in the “shadows” in any number of ways. To use the term “shadow docket” to capture the inaccessibility, inscrutability, and insufficiency of the Court’s output in these massively important cases is simply to describe a pattern of behavior that should trouble everyone, and not just those who also don’t like the results."
The fact that we keep getting these leaks, in spite of the Chief Justice's attempt to tamp them down, suggests, at least to me, that there are people inside the building who are also alarmed.
(It's possible that they are just trying to cause mischief, but the potential penalty seems too big to indulge in leaking just for the sake of annoying the conservative Justices.)
My guess is it wasn't a great weekend for Chief justice Roberts. It's hard to stop something you can't control.
Good point. I'm surprised there are not more leaks throughout government and agencies. Or maybe there are but it takes time to follow up on and organize in a compellling way for public consumption.
This analysis reinforces my growing expectation (hope?) that Chief Justice Roberts will come to be seen as the most historically significant individual contributor, surpassing even Senator McConnell, the current President, Stephen Miller et al., to creating and sustaining the current deplorable political, social and ethical (pervasively corrupt) environment in the US. Once the Republic, as I hope it will thanks to the initiatives of lawyers including Professor Vladeck and other sources of truth and defenders of justice (not to be conflated with all Justices) and the rest of us, survives the vindictive assaults on democracy and human rights led by traitorous American supporters of Putin and other enemies of humanity. Decisions reached since Roberts became Chief Justice in 2005 include among others Citizens United (a more accurate descriptor would be Citizens Blighted), Heller (horrifically lethal weapons for almost anyone, eventually almost anywhere), Trump vs. US (no one is above the law or exercises absolute power, oh wait...) and Dobbs (now you have a right, now it's gone) plus others, including those related to their impact upon necessary climate actions which reveal an appalling inattention to and/or ignorance of science and the value of independent inquiry and research. We should also not forget Roberts' rejection of an externally enforceable code of ethics for Supreme Court Justices, despite credible evidence of the unethical behavior of one or more Justices. and the activities of some of their spouses who ignore the admonition "Caesar's wife must be above suspicion," to avoid even the appearance of impropriety.
The Chief Justice is deeply concerned about his personal legacy. Based on his record to date, I propose a neologism with an obvious meaning - "dregsacy." Democracy becomes weak in the shadows before it dies in Darkness. The sicknesses afflicting American Justice are being misdiagnosed and made worse through the Shadow Docket.
Playing off what you say Justice Jackson proposed, here was my reaction after reading the NYT article:
“A serious court of law would create an objectively fair approach to upsetting the usual order of things:
1) Does the Court agree that this is an objectively real emergency as opposed to a pretext for non-emergent issues or undue delay? Vote.
2) If answer to #1 is No, reject!
3) If answer to #3 is Yes, then conduct injunctive relief analysis on expedited briefing and issue decision approving or rejecting stay.
4). If stay ordered then issue with specific instructions for expedited review below.
4)a) Always Show Your Work! A fourth grade dictum that sets forth the essential job of any court of law; especially where law is king, not the king is law.
5) In the absence of briefing, Justices must refrain from discussion of political questions or sharing of personal views on substantive or ultimate outcomes.
That’s a quick back of envelope approach to maintaining appearance of fundamental fairness and scholarly objectivity.
Not perfect but this is the thought process for establishing institutional safeguards against abandoning judicial standards to become legislative pawns wittingly or unwittingly!”
After reading your article Steve, I continue to believe the Court needs a published rubric to bring itself out of the shadows and back into the disinfecting light of day!
This weekend brought on my "Come to Jesus" moment regarding the CJ. A pleasant demeanor and a style that suggests the author's inherent fairness and reasonableness can mask a lot. Everybody has a role to play, and the past 20+ years have demonstrated how effective "reasonableness" can be, as measured against the Scalia/Thomas/Alito style. The New York Times, like Toto, has unmasked the Wizard! Thanks for the great journalism, and for the first-rate One First analysis.
Now, will the Chief Justice react like Justices Alito, Thomas, and Kavanaugh? Will he bemoan the unfairness of his dirty laundry being aired for the public to see and use this to become even more vindictive, petulant, and apocalyptic about the Left? Hopefully not.
Here's to hoping the extensive coverage of these memos will encourage the Chief Justice to approach the Trump Administration's requests for emergency relief with more skepticism. There certainly seems to have been a bit of a maturing in his approach to Trump during the 1st Term. Compare Trump v Hawaii (Muslim travel ban) with Dept of Commerce v New York (citizenship census question).
I really appreciate this newsletter. Thank you. Never thought I'd be leaning in to the SCOTUS to this degree, but these are the times we're living in. Being able to listen is wonderful, so I can multitask a bit.
This retired atty thanks you, and [ begrudingly, the NYT and the leakers], deeply for the reporting and analysis. Would that I could say I am 'surprised". Roberts has no pass on this; he is bright, well-educated, and deeply experienced. His only explanation is his personal [ partisan ] preference for a certain lifestyle and a certain type of reactionary US. Clearly he is OK with all the harm to millions in US and in the world that his actions have caused. [ A footnote: he and I are both Catholics, yet we regard the law entirely differently. So, that's not the root evil.] The very least he, and those akin, could do is to be forthright and mature and run for office to achieve their results. If there's any chance to halt some of his damage/harm [ along with that of sa and ct ], it is by Ds overhauling the court - the technical term is 'lickety split'.
In essence, the NYT report on the shadow docket shows a highly partisan Republican majority on the Court making substantive decisions of significant consequences based on their partisan policy biases, "supported" by "facts" from their casual "news" viewing habits. No wonder Fox News is so influential on these highly partisan Republican justices. We would get the same results from six drunk highly partisan Republicans at a bar watching Fox News.
Roberts is often considered an "institutionalist" for his apparent restraint, compared to the bomb-throwers like Alito, Thomas and Kavanaugh. This is not the case. Nor would I call him hypocritical, as he faithfully and consistently seeks to consolidate power for the oligarchy that appointed him to the Court for that purpose. He seeks to preserve the legitimacy of the Court because he understands that, in pursuit of the legal goals of the fascist right, many, many laws will have to be overturned, not just a few, and the appearance of impartiality is crucial for such a long-term goal.
When Roberts described himself as merely calling balls and strikes was he naive or lying? I’m going with lying. His behavior is to my mind inconsistent with the “good behavior” standard set forth in the Constitution which authorizes life tenure and were I president, I would terminate him and the other justices who are enabling his rancid, corrupt behavior.
Scalia died soon after the decision here. It was early February 2016. Without him, it would have been a 4-4 Court. I'll be honest. I thought his death would mean a 5-4 Court, for the first time in my lifetime, with Democratic presidents appointing the majority. It was not to be.
Personnel matters. I read Shadow Docket. I'm unsure just how much Congress can realistically reform the Court, especially given what happened over the last 50 years.
But I understand why people support court expansion, however one (like Vladeck, who opposes it) feels about the subject. The biggest difference here was personnel, from Scalia dying when he did, who replaced him, Kennedy resigning, and more. Yes, who is president matters too, though only so much -- both Obama and Biden were significantly blocked by SCOTUS, the Affordable Care Act barely surviving, though still weakened. Personnel.
Thank you for your analysis of these disclosures. They show to me, at least, that behind closed doors CJ Roberts is closer in temperament to JJ. Alito and Thomas and has a willingness to be an advocate, and a pointedly adversarial one at that, for big business in general and the fossil fuel industry in particular. I am (naively?) disappointed. No more presumption of impartiality for CJ Roberts.
CJ Roberts is revealed as nakedly partisan in favor of Republican Presidents and agendas; and as unrepentantly hypocritical about it.
In my opinion, a key talking point for every Democrat candidate for federal office should be the impeachment of Roberts.
"The Court is deciding massively important questions not just out of public sight, or through unsigned and unexplained rulings, but with remarkably cryptic behind-the-scenes deliberations, too. These decisions are being made in the “shadows” in any number of ways. To use the term “shadow docket” to capture the inaccessibility, inscrutability, and insufficiency of the Court’s output in these massively important cases is simply to describe a pattern of behavior that should trouble everyone, and not just those who also don’t like the results."
The fact that we keep getting these leaks, in spite of the Chief Justice's attempt to tamp them down, suggests, at least to me, that there are people inside the building who are also alarmed.
(It's possible that they are just trying to cause mischief, but the potential penalty seems too big to indulge in leaking just for the sake of annoying the conservative Justices.)
My guess is it wasn't a great weekend for Chief justice Roberts. It's hard to stop something you can't control.
Good point. I'm surprised there are not more leaks throughout government and agencies. Or maybe there are but it takes time to follow up on and organize in a compellling way for public consumption.
This analysis reinforces my growing expectation (hope?) that Chief Justice Roberts will come to be seen as the most historically significant individual contributor, surpassing even Senator McConnell, the current President, Stephen Miller et al., to creating and sustaining the current deplorable political, social and ethical (pervasively corrupt) environment in the US. Once the Republic, as I hope it will thanks to the initiatives of lawyers including Professor Vladeck and other sources of truth and defenders of justice (not to be conflated with all Justices) and the rest of us, survives the vindictive assaults on democracy and human rights led by traitorous American supporters of Putin and other enemies of humanity. Decisions reached since Roberts became Chief Justice in 2005 include among others Citizens United (a more accurate descriptor would be Citizens Blighted), Heller (horrifically lethal weapons for almost anyone, eventually almost anywhere), Trump vs. US (no one is above the law or exercises absolute power, oh wait...) and Dobbs (now you have a right, now it's gone) plus others, including those related to their impact upon necessary climate actions which reveal an appalling inattention to and/or ignorance of science and the value of independent inquiry and research. We should also not forget Roberts' rejection of an externally enforceable code of ethics for Supreme Court Justices, despite credible evidence of the unethical behavior of one or more Justices. and the activities of some of their spouses who ignore the admonition "Caesar's wife must be above suspicion," to avoid even the appearance of impropriety.
The Chief Justice is deeply concerned about his personal legacy. Based on his record to date, I propose a neologism with an obvious meaning - "dregsacy." Democracy becomes weak in the shadows before it dies in Darkness. The sicknesses afflicting American Justice are being misdiagnosed and made worse through the Shadow Docket.
Our Mets lose their 11th in a row, and the Chief is revealed as more of a partisan hack than we thought or wanted to think. It’s only April!
Playing off what you say Justice Jackson proposed, here was my reaction after reading the NYT article:
“A serious court of law would create an objectively fair approach to upsetting the usual order of things:
1) Does the Court agree that this is an objectively real emergency as opposed to a pretext for non-emergent issues or undue delay? Vote.
2) If answer to #1 is No, reject!
3) If answer to #3 is Yes, then conduct injunctive relief analysis on expedited briefing and issue decision approving or rejecting stay.
4). If stay ordered then issue with specific instructions for expedited review below.
4)a) Always Show Your Work! A fourth grade dictum that sets forth the essential job of any court of law; especially where law is king, not the king is law.
5) In the absence of briefing, Justices must refrain from discussion of political questions or sharing of personal views on substantive or ultimate outcomes.
That’s a quick back of envelope approach to maintaining appearance of fundamental fairness and scholarly objectivity.
Not perfect but this is the thought process for establishing institutional safeguards against abandoning judicial standards to become legislative pawns wittingly or unwittingly!”
After reading your article Steve, I continue to believe the Court needs a published rubric to bring itself out of the shadows and back into the disinfecting light of day!
This weekend brought on my "Come to Jesus" moment regarding the CJ. A pleasant demeanor and a style that suggests the author's inherent fairness and reasonableness can mask a lot. Everybody has a role to play, and the past 20+ years have demonstrated how effective "reasonableness" can be, as measured against the Scalia/Thomas/Alito style. The New York Times, like Toto, has unmasked the Wizard! Thanks for the great journalism, and for the first-rate One First analysis.
Now, will the Chief Justice react like Justices Alito, Thomas, and Kavanaugh? Will he bemoan the unfairness of his dirty laundry being aired for the public to see and use this to become even more vindictive, petulant, and apocalyptic about the Left? Hopefully not.
Here's to hoping the extensive coverage of these memos will encourage the Chief Justice to approach the Trump Administration's requests for emergency relief with more skepticism. There certainly seems to have been a bit of a maturing in his approach to Trump during the 1st Term. Compare Trump v Hawaii (Muslim travel ban) with Dept of Commerce v New York (citizenship census question).
Yet another emperor has no clothes.
It's like one long streaker convention in DC these days!
I really appreciate this newsletter. Thank you. Never thought I'd be leaning in to the SCOTUS to this degree, but these are the times we're living in. Being able to listen is wonderful, so I can multitask a bit.
This retired atty thanks you, and [ begrudingly, the NYT and the leakers], deeply for the reporting and analysis. Would that I could say I am 'surprised". Roberts has no pass on this; he is bright, well-educated, and deeply experienced. His only explanation is his personal [ partisan ] preference for a certain lifestyle and a certain type of reactionary US. Clearly he is OK with all the harm to millions in US and in the world that his actions have caused. [ A footnote: he and I are both Catholics, yet we regard the law entirely differently. So, that's not the root evil.] The very least he, and those akin, could do is to be forthright and mature and run for office to achieve their results. If there's any chance to halt some of his damage/harm [ along with that of sa and ct ], it is by Ds overhauling the court - the technical term is 'lickety split'.
In essence, the NYT report on the shadow docket shows a highly partisan Republican majority on the Court making substantive decisions of significant consequences based on their partisan policy biases, "supported" by "facts" from their casual "news" viewing habits. No wonder Fox News is so influential on these highly partisan Republican justices. We would get the same results from six drunk highly partisan Republicans at a bar watching Fox News.
And so, Chief Justice Johnny Bobby joins Tony K and Bretty-Boy among the nicknamed Justices whose reputation is now beyond salvation.
Roberts is often considered an "institutionalist" for his apparent restraint, compared to the bomb-throwers like Alito, Thomas and Kavanaugh. This is not the case. Nor would I call him hypocritical, as he faithfully and consistently seeks to consolidate power for the oligarchy that appointed him to the Court for that purpose. He seeks to preserve the legitimacy of the Court because he understands that, in pursuit of the legal goals of the fascist right, many, many laws will have to be overturned, not just a few, and the appearance of impartiality is crucial for such a long-term goal.
When Roberts described himself as merely calling balls and strikes was he naive or lying? I’m going with lying. His behavior is to my mind inconsistent with the “good behavior” standard set forth in the Constitution which authorizes life tenure and were I president, I would terminate him and the other justices who are enabling his rancid, corrupt behavior.
Scalia died soon after the decision here. It was early February 2016. Without him, it would have been a 4-4 Court. I'll be honest. I thought his death would mean a 5-4 Court, for the first time in my lifetime, with Democratic presidents appointing the majority. It was not to be.
Personnel matters. I read Shadow Docket. I'm unsure just how much Congress can realistically reform the Court, especially given what happened over the last 50 years.
But I understand why people support court expansion, however one (like Vladeck, who opposes it) feels about the subject. The biggest difference here was personnel, from Scalia dying when he did, who replaced him, Kennedy resigning, and more. Yes, who is president matters too, though only so much -- both Obama and Biden were significantly blocked by SCOTUS, the Affordable Care Act barely surviving, though still weakened. Personnel.