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.
In addition, there's the little matter of Chief Justice Roberts, through his wife, taking commissions from law offices that had ample business with the court and concealing them as salary (as many as 500 times, by one estimate, and totaling around $21 million; it even eclipses the vast corruption of Roberts and Alito). It's not only against tax law but would probably go under purchase of services and bribery statutes, and be sufficient reason all by itself to remove Justice Roberts and put him in jail where he belongs. He could share a cell with those two justices, and with Trump, Miller, Witkoff, Kushner, Kegsbreath, Vaught, Bessant ....
"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.
People see what was done to Edward Snowden, Julian Assange (who only published leaks), Chelsea Manning, and others. It takes quite a bit of courage to be a leaker.
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.
I agree with this thoughtful argument. I believe, though, that it would be well to mention how clearly Roberts compares with the great judicial demon of American history, Roger Taney. Like Taney, Roberts (and his Republican colleagues) place their allegiance to a particular partisan preference ahead of the vitality of the constitution itself or even the survival of the national experiment. Like Taney, Roberts et al. have used their power to warp the law in ways that widen fissures in our society, increase the likelihood of wrongdoing by government and government officials, and lead to reduced belief that our society is upholding the most fundamental commitments it has purported to make. And like Taney, Roberts and the rest of the Republican Six seem utterly unwilling even to consider the possibility that they are wrong.
Excellent point which emphasizes the value of historians as well as lawyers in helping understand what is going on in the Supreme Copurt today. I wonder if some Supreme Court Justices, espacially ironically the orginalists, are as ignorant or dismissive of history as they are of science in their consideration of the consequences of their rulings today. Or do they prefer as Alito does to use the attitudes and decisions of 17th century English judges to support their current positions, as if the long discredited phlogiston theory of combustion should still be taken seriously?
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!
I would posit an additional item, one that should appear ahead of all the rest:
1) Has the Court adopted a Code of Judicial Conduct for itself that is at least as rigorous as the one imposed on the Court Courts of Appeal? If yes, proceed. If no, STOP ALL ACTIVITY UNTIL YOU CAN ANSWER “YES”!
While I do not disagree, I was trying to be realistic given the Court we are dealing with. Let’s propose simple and practical solutions without engaging in too much legal/philosophical debate. Just do what we ask our elementary school kids to do: SHOW YOUR WORK!
It occurs to me that we have lost the concept of co-equality of branches. Branches are not trees. Branches are part of a tree. Branches spring from and serve the tree. Branches that want to be trees are probably diseased and need to be pruned. Our three co-equal branches have lost sight of the tree to which they are servants! They invite and cry for pruning.
The lead-in to your five points (“A serious court of law would create an objectively fair approach … .”) clearly to undercuts your claim to realism and displays a truly prescriptive approach.
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'.
This retired lawyer asks you, respectfully, why you begrudgingly thank the leakers? I say they are true American heroes who by their actions prove their allegiance to the Constitution and the obligations it creates on the members of the Court, obligations that at least CJ Roberts picks and chooses when to follow. Until the Court adopts for itself and abides by a rigorous code of conduct and follows the rules that Michael set out in his comment, above, we need leakers of good will and courage to shed light on the Shadow Docket and the other misadventures occurring amongst the Justices.
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.
Presenting the appearance of impartiality while being partisan is hypocritical. He's consistently partisan, but that consistency doesn't mean he's not a hypocrite.
Yes, you are correct. Space didn't allow, but in general I prefer to describe the values that such people hold (what they're affirming) rather than what they're pretending, as the former is concrete and specific, while the latter can be too vague to obtain a clear understanding of the actual political goals.
A shorter version would be that while the Democratic appointees act like jurists, the Republican ones function as right-wing political operatives with law degrees.
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.
A mystical act of levitation far above the hoi polloi.
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.
In addition, there's the little matter of Chief Justice Roberts, through his wife, taking commissions from law offices that had ample business with the court and concealing them as salary (as many as 500 times, by one estimate, and totaling around $21 million; it even eclipses the vast corruption of Roberts and Alito). It's not only against tax law but would probably go under purchase of services and bribery statutes, and be sufficient reason all by itself to remove Justice Roberts and put him in jail where he belongs. He could share a cell with those two justices, and with Trump, Miller, Witkoff, Kushner, Kegsbreath, Vaught, Bessant ....
"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.
People see what was done to Edward Snowden, Julian Assange (who only published leaks), Chelsea Manning, and others. It takes quite a bit of courage to be a leaker.
Yes shadow docket sounds nefarious because it is.
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.
I heartily agree with your thoughtful comment.
I agree with this thoughtful argument. I believe, though, that it would be well to mention how clearly Roberts compares with the great judicial demon of American history, Roger Taney. Like Taney, Roberts (and his Republican colleagues) place their allegiance to a particular partisan preference ahead of the vitality of the constitution itself or even the survival of the national experiment. Like Taney, Roberts et al. have used their power to warp the law in ways that widen fissures in our society, increase the likelihood of wrongdoing by government and government officials, and lead to reduced belief that our society is upholding the most fundamental commitments it has purported to make. And like Taney, Roberts and the rest of the Republican Six seem utterly unwilling even to consider the possibility that they are wrong.
Excellent point which emphasizes the value of historians as well as lawyers in helping understand what is going on in the Supreme Copurt today. I wonder if some Supreme Court Justices, espacially ironically the orginalists, are as ignorant or dismissive of history as they are of science in their consideration of the consequences of their rulings today. Or do they prefer as Alito does to use the attitudes and decisions of 17th century English judges to support their current positions, as if the long discredited phlogiston theory of combustion should still be taken seriously?
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!
I would posit an additional item, one that should appear ahead of all the rest:
1) Has the Court adopted a Code of Judicial Conduct for itself that is at least as rigorous as the one imposed on the Court Courts of Appeal? If yes, proceed. If no, STOP ALL ACTIVITY UNTIL YOU CAN ANSWER “YES”!
While I do not disagree, I was trying to be realistic given the Court we are dealing with. Let’s propose simple and practical solutions without engaging in too much legal/philosophical debate. Just do what we ask our elementary school kids to do: SHOW YOUR WORK!
It occurs to me that we have lost the concept of co-equality of branches. Branches are not trees. Branches are part of a tree. Branches spring from and serve the tree. Branches that want to be trees are probably diseased and need to be pruned. Our three co-equal branches have lost sight of the tree to which they are servants! They invite and cry for pruning.
The lead-in to your five points (“A serious court of law would create an objectively fair approach … .”) clearly to undercuts your claim to realism and displays a truly prescriptive approach.
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!
_nice
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'.
This retired lawyer asks you, respectfully, why you begrudgingly thank the leakers? I say they are true American heroes who by their actions prove their allegiance to the Constitution and the obligations it creates on the members of the Court, obligations that at least CJ Roberts picks and chooses when to follow. Until the Court adopts for itself and abides by a rigorous code of conduct and follows the rules that Michael set out in his comment, above, we need leakers of good will and courage to shed light on the Shadow Docket and the other misadventures occurring amongst the Justices.
That was my inartful syntax. "Begrudgingly" refers to NYT. Since, in my view, that entity has committed much harm, I stick with that.
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.
Presenting the appearance of impartiality while being partisan is hypocritical. He's consistently partisan, but that consistency doesn't mean he's not a hypocrite.
Yes, you are correct. Space didn't allow, but in general I prefer to describe the values that such people hold (what they're affirming) rather than what they're pretending, as the former is concrete and specific, while the latter can be too vague to obtain a clear understanding of the actual political goals.
A shorter version would be that while the Democratic appointees act like jurists, the Republican ones function as right-wing political operatives with law degrees.
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.
He didn't say he was calling balls and strikes *fairly* :--)
He was purportedly just the umpire. Sadly, no ABS system in place to overturn his bad calls.
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.