The US Supreme Court Is Deciding More and More Cases in a Secretive 'Shadow Docket'

By Moira Donegan, Guardian UK

31 August 21

These emergency rulings – short, unsigned and issued without hearing oral arguments – undermine the public’s faith in the integrity of the court

ast week, it was Remain in Mexico. On Tuesday, the supreme court issued an order requiring the Biden administration to reinstate the Trump-era policy that required asylum seekers from Central America to stay across the border in Mexico while their claims are adjudicated. It was an uncommonly aggressive intervention into foreign policy, an area where previous courts have preferred a light touch, and it posed massive logistical, diplomatic and humanitarian crises at the border that will need to be rapidly resolved if the Biden administration is to comply with the order.

Two days later, it was the eviction moratorium. On Thursday, the court blocked an extension of the federal emergency ban on evictions, gutting a 1944 law that gave the CDC the authority to implement such measures to curb disease, and endangering the 8m American households that are behind on rent – who now, without federal eviction protection, may face homelessness.

Both of these orders last week were issued in the dead of night. Their opinions were truncated, light on the details of their legal reasoning, and unsigned. Vote counts were not issued showing how each justice decided. And despite the enormous legal and human impact that the decisions inflicted, they were the product of rushed, abbreviated proceedings. The court did not receive full briefs on these matters, heard no oral arguments and overrode the normal sequence of appellate proceedings to issue their orders.

Welcome to the “shadow docket”, the so-called emergency proceedings that now constitute the majority of the supreme court’s business. Minimally argued, rarely justified and decided without transparency, shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters. To have an issue addressed on the shadow docket, a litigant has to apply for “emergency relief” – usually to stop a decision against them from a lower court from going into effect while appeals proceed. Traditionally, applicants would need to demonstrate that they would suffer “irreparable harm” if their petition wasn’t granted immediately. So one historical use of the shadow docket has been in federal death penalty cases, where the court has used the emergency proceeding to affirm or deny requests for stays of execution.

But in recent years the court has largely dispensed with any meaningful application of the irreparable harm standard, and instead has entertained emergency relief petitions from more and more litigants, issuing shadow docket rulings on increasingly significant and controversial legal questions without the rigor or transparency that such issues demand.

The term “shadow docket” was coined in 2015 by a conservative law professor to refer to the thousands of supreme court actions each term that defy the “normal procedural regularity” of the federal appellate process. A newer, expanded version of the shadow docket began to emerge in 2017, when the Trump administration came to power. Previously, shadow docket emergency requests had been rarely used, to advance the interests of the governing administration. From 2001 through 2016, the Department of Justice applied for these emergency relief interventions from the court only eight times. During the four years of Trump’s presidency, however, the justice department applied 41 times. The use of shadow docket requests by Trump’s justice department especially accelerated after 2018, when Justice Anthony Kennedy retired and was replaced by Brett Kavanaugh, initiating the court’s rightward lurch.

The gambit worked. Of those 41 requests, the supreme court granted 28 of them in whole or in part, denying the Trump administration outright only four times – much more generous than the court has been to other litigants. Bypassing lower courts, the Trump administration was able to solicit the supreme court for a green light for border wall funding and construction, for a ban of transgender troops in the military, for a ban of immigrants from Muslim majority countries, and for many, many executions during the administration’s 11th-hour killing spree in the latter half of 2020.

Ultimately, many of the policies that the court used the shadow docket to keep in place were never declared legal: they were simply rescinded when Trump left office. It was only because of the supreme court’s unusual intervention via the shadow docket that they were able to be enacted at all. If this seems like the court merely deferring to the prerogatives of the executive, rest assured that it isn’t: the court’s shadow docket has not been similarly generous towards Biden administration claims.

In this way, the shadow docket’s expanded use raises troubling questions – both for transparency, and for the separation of powers. What does it mean for popular sovereignty when the unelected supreme court can overturn the actions of elected officials seemingly at whim, without reading briefs, without hearing arguments and without having to assign judges’ names to their opinions or make any effort to explain their reasoning? The supreme court’s cryptic, late-night shadow docket decrees risk overextending the court’s already tremendous power, and its lack of transparency shrinks the already slim opportunities for oversight. There is considerable potential for abuse, and there are also simple logistical problems: without a real accounting of the justices’ reasoning, lower courts are left to guess why a certain decision was handed down, rendering them less equipped to interpret precedent.

And all of this is before we get to the shadow docket’s real problem: it further undermines the already severely damaged public trust in the court. The justices and the legal elites who flatter them like to say that the supreme court is composed of neutral, apolitical arbiters of the law. But this mythology conflicts with a growing public perception of the federal judiciary as protectors of Republican priorities. This impression is not helped by the reality that the court’s decisions on the shadow docket seem much less consistent in their legal reasoning than they do in their politics. In light of this, it is tempting to conclude that the court has transformed the once-anodyne tool of the shadow docket into a way to achieve the preferred outcomes of the conservative majority without having to justify its own actions to the public.

Steve Vladeck, a University of Texas law professor and one of the shadow docket’s most prominent critics, summarized the danger in an article in the Harvard Law Review. The shadow docket, he writes, “risks the perception that the rule is not one for the federal government in general, but for the federal government at particular moments in time – perhaps depending on the identity (or political affiliation) of the sitting president, or perhaps, more granularly, depending on the political or ideological valence of the particular government policy at issue”.

With respect to Professor Vladeck, maybe the shadow docket does not risk such a perception – maybe it reaffirms it.

Peace Activist Kathy Kelly on Reparations for Afghanistan and What the US Owes After Decades of War

By Democracy Now!

31 August 21

s the United States ends its military presence in Afghanistan after 20 years of occupation and war, the Costs of War Project estimates it spent over $2.2 trillion in Afghanistan and Pakistan, and by one count, over 170,000 people died during the fighting over the last two decades. Kathy Kelly, longtime peace activist who has traveled to Afghanistan dozens of times and coordinates the Ban Killer Drones campaign, says it will be important to keep international focus on the people of Afghanistan. “Everybody in the United States and in every country that has invaded and occupied Afghanistan ought to make reparations,” Kelly says. “Not only financial reparations for the terrible destruction caused, but also to address … the systems of warfare that ought to be set aside and dismantled.”

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.

U.S. military and diplomatic forces withdrew from Afghanistan just before midnight local time in Kabul Monday night. While the move is being described as the end of the longest war in U.S. history, some warn the war may not be truly over. On Sunday, Secretary of State Tony Blinken appeared on Meet the Press and discussed U.S. capabilities to keep attacking Afghanistan after troops withdraw.

SECRETARY OF STATE ANTONY BLINKEN: We have the capacity around the world, including in Afghanistan, to take — to find and to take strikes against terrorists who want to do us harm. And as you know, in country after country, including places like Yemen, like Somalia, large parts of Syria, Libya, places where we don’t have boots on the ground on any kind of ongoing basis, we have the capacity to go after people who are trying to do us harm. We’ll retain that capacity in Afghanistan.

AMY GOODMAN: Back in April, The New York Times reported the United States is expected to keep relying on a, quote, “shadowy combination of clandestine Special Operations forces, Pentagon contractors and covert intelligence operatives” inside Afghanistan. It’s unclear how these plans have changed following the Taliban takeover.

For more, we’re joined in Chicago by the longtime peace activist Kathy Kelly. She’s been nominated for the Nobel Peace Prize over and over again. She’s traveled to Afghanistan dozens of times.

Kathy, welcome back to Democracy Now! Can you start off by responding to what is being hailed in the U.S. press as the longest war in U.S. history is over?

KATHY KELLY: Well, Ann Jones once wrote a book entitled War Is Not Over When It’s Over. Certainly, for people in Afghanistan, who have been afflicted by this war, by conditions of terrible drought for two years, a third wave of COVID, terrible economic realities, they’re still suffering a great deal.

And the drone strikes, I think, are an indication that — these most recent drone strikes, that the United States has not set aside its intent to keep on using what they call force and precision, but what Daniel Hale, who is now in prison, has shown 90% of the time did not hit the intended victims. And this will cause more desires for revenge and retaliation and bloodshed.

JUAN GONZÁLEZ: And, Kathy, I wanted to ask you, in terms of this — do you feel that the American people will draw the best lessons from this terrible situation in Afghanistan, this clear defeat for the United States and its occupation? After we’ve seen now for 70 years U.S. military force exercised in these occupations, from Korea to Vietnam to Libya to — the Balkans is the only thing that the U.S. can sort of claim as a victory. There have been disaster after disaster, now Afghanistan. What lesson would you hope our population would learn from these terrible occupations?

KATHY KELLY: Well, Juan, you know, I think the words of Abraham Heschel apply: Some are to blame; all are accountable. I think everybody in the United States and in every country that has invaded and occupied Afghanistan ought to make reparations and really earnestly seek that, not only financial reparations for the terrible destruction caused, but also to address the systems that you’ve just mentioned played out in country after country, the systems of warfare that ought to be set aside and dismantled. This is the lesson that I think U.S. people need to learn. But, you know, there was more coverage in the last two weeks by mainstream media of Afghanistan than there had been in the past 20 years, and so people are underserved by the media in terms of understanding the consequences of our wars.

AMY GOODMAN: You are not in the business, Kathy, of complimenting U.S. presidents when it comes to war. And this was one U.S. president after another, I think, for at least, overall. Do you think Biden had political courage in pulling out, to the extent that they have, publicly, the last U.S. troop, the photograph sent out by the Pentagon, by the general getting on the last transport carrier and leaving?

KATHY KELLY: I think had President Biden said that he was also going to go up against the United States Air Force request for $10 billion to enable over-the-horizon attacks, that would have been the kind of political courage that we need to see. We need a president who will stand up to the military contracting companies that make billions by marketing their weapons, and say, “We’re done with all of it.” That’s the kind of political courage we need.

AMY GOODMAN: And the over-horizon attacks, for people who are not familiar with this term, what it means, how the U.S. is set up to attack Afghanistan now from outside?

KATHY KELLY: Well, the $10 billion that the U.S. Air Force requested will go to maintaining both drone surveillance and attack drone capacity and manned aircraft capacity in Kuwait, in the United Arab Emirates, in Qatar and in an aircraft and the middle of the ocean. And so, this will always make it possible for the United States to continue to attack, often people who aren’t the intended victims, and also to say to every other country in the region, “We are still here.”

AMY GOODMAN: We thank you, Kathy, so much for being with us. Ten seconds on reparations. What would it look like, when you say the U.S. owes reparations to the people of Afghanistan?

KATHY KELLY: A massive amount of money put in by the U.S. and all the NATO countries into perhaps an escrow account, that would not be under the guidance or the distribution of the United States. The United States has already shown that it can’t do that without corruption and failure. But I think we would have to look to the U.N. and groups that have a reputation for being able to truly assist people in Afghanistan, and then reparations through dismantling the war system.

AMY GOODMAN: Kathy Kelly, longtime peace activist and author, one of the founding members of Voices in the Wilderness, later Voices for Creative Nonviolence, and the co-coordinator of the Ban Killer Drones campaign and a member of the World Beyond War. She has traveled to Afghanistan nearly 30 times.

Next up, New Orleans in the dark after Hurricane Ida. Stay with us.

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AMY GOODMAN: “Song for George” by Mat Callahan and Yvonne Moore. Today is the last day of Black August to remember Black freedom fighters. And this month marks 50 years since the assassination of activist and prisoner George Jackson. The Freedom Archives has published a list of the 99 books George Jackson had in his cell.