SCOTUS

[MDlaxfan76]

Apologize in advance for the length of this post.

The problem with the so-called shadow docket and the Court's "emergency" intervention into the clean water case is best understood by comparing the the normal process by which a case reaches the Supreme Court and is then adjudicated, and the shadow docket process. Normally, as you all likely know, the Court takes cases from the final judgments of the Courts of Appeal. Those cases have been, therefore, through the trial court, which, with the litigants, is invested with the duty to develop the record of the facts that underlie the legal issues being contested. The case is then briefed and argued to the federal district judge. A reasoned decision is provided by the court. Then the record on appeal is bundled together, and the Court of Appeals examines the case for any errors of law, or misapprehension of the facts, by the lower court. They schedule briefing and hold arguments, and then issue a decision, that ultimately gets appealed to the Supreme Court. The Court then accepts the appeal -- with the full record on appeal, and all or nearly all of the issues ventilated very thoroughly, as you might expect in a case about, say, an executive agency's power to regulate matters bearing on the environment and water quality.

The shadow docket short circuits this well-known and empirically sound, time-honored process of adjudicating abstruse questions of federal statutory and constitutional law. In the case that started this recent thread/series of comments, there is no record on appeal; the case has only just reached the Court of Appeals, and that appeal is actually pending. In steps the Supreme Court, using powers that, under a long body of case authority, are only to be used in grave, grave emergencies where the threat of irreparable harm exists.

Here, the losing parties applied to the SCOTUS for a stay of the federal district judge's ruling, which had vacated a Trump era EPA regulation that prevented States from using their powers to block projects that may cause water pollution. Those parties jumped over the Court of Appeals and asked the Supreme Court to effectively pre-judge the merits...and the five conservatives did so, without much regard for the process or the fact that the matter before them was far, far short of fully briefed.

Kagan's dissent lays out the problems with this very clearly (I Have removed the case cites, but it is noteworthy that she cites to opinions written by very conservative members of the past-Court):

"Five months after the District Court remanded and vacated an Environmental Protection Agency rule, a group of States and industry organizations have asked us to stay the decision pending appeal, claiming that they will otherwise suffer irreparable harm. I would deny the request. This Court may stay a decision under review in a court of appeals “only in extraordinary circumstances” and “upon the weightiest considerations.” The applicants here have not met our standard because they have failed to substantiate their assertions of irreparable harm. The Court therefore has no warrant to grant emergency relief.

To obtain a stay in a case pending before an appellate court, a party (like the applicants here) must make a showing of “irreparabl[e] injur[y] absent a stay.” “A stay is an intrusion into the ordinary processes of administration and judicial review.” It disrupts the usual manner of hearing and considering an appeal before rendering a decision and granting relief. Our disruption of that normal order is justified only “rarely.” An applicant must show more than a likelihood of prevailing on the merits in the appellate court. It must also show an exceptional need for immediate relief. That means the applicant must (at the least) present evidence of irreversible injury—harm occurring during the appeals process that cannot be later redressed. And that evidence must clear a high bar. “[S]imply showing some possibility of irreparable injury fails to satisfy” our test. The applicant must offer concrete proof that irreparable harm is “likel[y]” to occur.

The applicants here have failed to meet that burden. They claim that the vacated rule gave them “protections” against States that previously “abuse[d]” their statutory authority to review infrastructure projects for compliance with water-quality standards. Application 25. But the ap-
plicants have not identified a single project that a State has obstructed in the five months since the District Court’s decision. Still more, they have not cited a single project that the court’s ruling threatens, or is likely to threaten, in the time before the appellate process concludes. The request for a stay rests on simple assertions—on conjectures, unsupported by any present-day evidence, about what States will now feel free to do. And the application fails to show that proper implementation of the reinstated regulatory regime—which existed for 50 years before the vacated rule came into effect—is incapable of countering whatever state overreach may (but may not) occur. Even the applicants’ own actions belie the need for a stay: Twice, the applicants waited a month before seeking that relief (the first time in the District Court, the second time here). While the applicants thus delayed, the appellate process went forward: The case will be fully briefed in the Court of Appeals next month. The applicants have given us no good reason to think that in the remaining time needed to decide the appeal, they will suffer irreparable harm.

By nonetheless granting relief, the Court goes astray. It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required. That renders the Court’s emergency docket not for
emergencies at all. The docket becomes only another place for merits determinations—except made without full briefing and argument. I respectfully dissent."

IN other words, well-heeled people and corporations can get special messaging on the merits from the Supreme Court, without briefing at all, and without the Court majority disclosing ANY of its reasoning. This is damaging to the process, damaging to the Court's institutional standing, and smacks of special interests having their way with the Court, while other weary travelers have to wait their turn. Kagan may well be the single smartest Justice on the Court, and is by no means some crazed liberal. That she got the Chief to sign on -- through the use of citation to earlier cases in which he and Rehnquist rejected these very sorts of decisions and decision-making end runs -- should tell us almost everything we need to know.

Very well written post Mr Coaster. I don't know if ACB is a lying POS as described by a fellow poster. The issue of this shadow docket nonsense is disconcerting. FTR some executive orders that bypass congress are also disturbing to me. When you look close there is a lot of funky stuff going on in DC.

Cradle,

We can all agree there. Some shady stuff...

Joe

Never forget, if one side can do the other side can too. My question.. what does anybody do about it? Right or wrong they are the supremes and there is no higher legal authority in the land. I feel the same way about executive orders that bypass congress and establish new laws. There is a legitimate argument that if Congress was doing their job, there would be little need for executive orders.

yes, but I think you agree that there really isn't any excuse for SCOTUS to be so routinely making decisions without even arguments or written opinions.

The seesaw between executive and legislative authorities has indeed been troubling recently, but, as you imply, at least in recent history, the problem has been the unwillingness of the two parties to compromise and enact legislative answers to pressing problems, kicking the can over to the executive branch by default...and sometimes the Executive branch over eager in response.

SCOTUS is another matter...

[cradleandshoot]

Apologize in advance for the length of this post.

The problem with the so-called shadow docket and the Court's "emergency" intervention into the clean water case is best understood by comparing the the normal process by which a case reaches the Supreme Court and is then adjudicated, and the shadow docket process. Normally, as you all likely know, the Court takes cases from the final judgments of the Courts of Appeal. Those cases have been, therefore, through the trial court, which, with the litigants, is invested with the duty to develop the record of the facts that underlie the legal issues being contested. The case is then briefed and argued to the federal district judge. A reasoned decision is provided by the court. Then the record on appeal is bundled together, and the Court of Appeals examines the case for any errors of law, or misapprehension of the facts, by the lower court. They schedule briefing and hold arguments, and then issue a decision, that ultimately gets appealed to the Supreme Court. The Court then accepts the appeal -- with the full record on appeal, and all or nearly all of the issues ventilated very thoroughly, as you might expect in a case about, say, an executive agency's power to regulate matters bearing on the environment and water quality.

The shadow docket short circuits this well-known and empirically sound, time-honored process of adjudicating abstruse questions of federal statutory and constitutional law. In the case that started this recent thread/series of comments, there is no record on appeal; the case has only just reached the Court of Appeals, and that appeal is actually pending. In steps the Supreme Court, using powers that, under a long body of case authority, are only to be used in grave, grave emergencies where the threat of irreparable harm exists.

Here, the losing parties applied to the SCOTUS for a stay of the federal district judge's ruling, which had vacated a Trump era EPA regulation that prevented States from using their powers to block projects that may cause water pollution. Those parties jumped over the Court of Appeals and asked the Supreme Court to effectively pre-judge the merits...and the five conservatives did so, without much regard for the process or the fact that the matter before them was far, far short of fully briefed.

Kagan's dissent lays out the problems with this very clearly (I Have removed the case cites, but it is noteworthy that she cites to opinions written by very conservative members of the past-Court):

"Five months after the District Court remanded and vacated an Environmental Protection Agency rule, a group of States and industry organizations have asked us to stay the decision pending appeal, claiming that they will otherwise suffer irreparable harm. I would deny the request. This Court may stay a decision under review in a court of appeals “only in extraordinary circumstances” and “upon the weightiest considerations.” The applicants here have not met our standard because they have failed to substantiate their assertions of irreparable harm. The Court therefore has no warrant to grant emergency relief.

To obtain a stay in a case pending before an appellate court, a party (like the applicants here) must make a showing of “irreparabl[e] injur[y] absent a stay.” “A stay is an intrusion into the ordinary processes of administration and judicial review.” It disrupts the usual manner of hearing and considering an appeal before rendering a decision and granting relief. Our disruption of that normal order is justified only “rarely.” An applicant must show more than a likelihood of prevailing on the merits in the appellate court. It must also show an exceptional need for immediate relief. That means the applicant must (at the least) present evidence of irreversible injury—harm occurring during the appeals process that cannot be later redressed. And that evidence must clear a high bar. “[S]imply showing some possibility of irreparable injury fails to satisfy” our test. The applicant must offer concrete proof that irreparable harm is “likel[y]” to occur.

The applicants here have failed to meet that burden. They claim that the vacated rule gave them “protections” against States that previously “abuse[d]” their statutory authority to review infrastructure projects for compliance with water-quality standards. Application 25. But the ap-
plicants have not identified a single project that a State has obstructed in the five months since the District Court’s decision. Still more, they have not cited a single project that the court’s ruling threatens, or is likely to threaten, in the time before the appellate process concludes. The request for a stay rests on simple assertions—on conjectures, unsupported by any present-day evidence, about what States will now feel free to do. And the application fails to show that proper implementation of the reinstated regulatory regime—which existed for 50 years before the vacated rule came into effect—is incapable of countering whatever state overreach may (but may not) occur. Even the applicants’ own actions belie the need for a stay: Twice, the applicants waited a month before seeking that relief (the first time in the District Court, the second time here). While the applicants thus delayed, the appellate process went forward: The case will be fully briefed in the Court of Appeals next month. The applicants have given us no good reason to think that in the remaining time needed to decide the appeal, they will suffer irreparable harm.

By nonetheless granting relief, the Court goes astray. It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required. That renders the Court’s emergency docket not for
emergencies at all. The docket becomes only another place for merits determinations—except made without full briefing and argument. I respectfully dissent."

IN other words, well-heeled people and corporations can get special messaging on the merits from the Supreme Court, without briefing at all, and without the Court majority disclosing ANY of its reasoning. This is damaging to the process, damaging to the Court's institutional standing, and smacks of special interests having their way with the Court, while other weary travelers have to wait their turn. Kagan may well be the single smartest Justice on the Court, and is by no means some crazed liberal. That she got the Chief to sign on -- through the use of citation to earlier cases in which he and Rehnquist rejected these very sorts of decisions and decision-making end runs -- should tell us almost everything we need to know.

Very well written post Mr Coaster. I don't know if ACB is a lying POS as described by a fellow poster. The issue of this shadow docket nonsense is disconcerting. FTR some executive orders that bypass congress are also disturbing to me. When you look close there is a lot of funky stuff going on in DC.

Cradle,

We can all agree there. Some shady stuff...

Joe

Never forget, if one side can do the other side can too. My question.. what does anybody do about it? Right or wrong they are the supremes and there is no higher legal authority in the land. I feel the same way about executive orders that bypass congress and establish new laws. There is a legitimate argument that if Congress was doing their job, there would be little need for executive orders.

yes, but I think you agree that there really isn't any excuse for SCOTUS to be so routinely making decisions without even arguments or written opinions.

The seesaw between executive and legislative authorities has indeed been troubling recently, but, as you imply, at least in recent history, the problem has been the unwillingness of the two parties to compromise and enact legislative answers to pressing problems, kicking the can over to the executive branch by default...and sometimes the Executive branch over eager in response.

SCOTUS is another matter...

Holy moly, mark the date and time. We are in agreement!! I feel very uncomfortable with this shadow docket nonsense. My argument here was a fellow poster singling out one justice as a lying POS. I have been lectured time and again on this forum for my own impetuous nature that makes me say the same type of nonsense out loud. You may remember MD that I caught a rash of chit from the FLP on this Forum for calling notorious RBG buzzy. These same folks degrade another supreme court justice and one calls her a POS and the jackals turn on me. What bothers me the most, not a single one of these folks seemed upset or bothered by the insult one single little bit. Does that surprise me? No it does not.

[MDlaxfan76]

Apologize in advance for the length of this post.

The problem with the so-called shadow docket and the Court's "emergency" intervention into the clean water case is best understood by comparing the the normal process by which a case reaches the Supreme Court and is then adjudicated, and the shadow docket process. Normally, as you all likely know, the Court takes cases from the final judgments of the Courts of Appeal. Those cases have been, therefore, through the trial court, which, with the litigants, is invested with the duty to develop the record of the facts that underlie the legal issues being contested. The case is then briefed and argued to the federal district judge. A reasoned decision is provided by the court. Then the record on appeal is bundled together, and the Court of Appeals examines the case for any errors of law, or misapprehension of the facts, by the lower court. They schedule briefing and hold arguments, and then issue a decision, that ultimately gets appealed to the Supreme Court. The Court then accepts the appeal -- with the full record on appeal, and all or nearly all of the issues ventilated very thoroughly, as you might expect in a case about, say, an executive agency's power to regulate matters bearing on the environment and water quality.

The shadow docket short circuits this well-known and empirically sound, time-honored process of adjudicating abstruse questions of federal statutory and constitutional law. In the case that started this recent thread/series of comments, there is no record on appeal; the case has only just reached the Court of Appeals, and that appeal is actually pending. In steps the Supreme Court, using powers that, under a long body of case authority, are only to be used in grave, grave emergencies where the threat of irreparable harm exists.

Here, the losing parties applied to the SCOTUS for a stay of the federal district judge's ruling, which had vacated a Trump era EPA regulation that prevented States from using their powers to block projects that may cause water pollution. Those parties jumped over the Court of Appeals and asked the Supreme Court to effectively pre-judge the merits...and the five conservatives did so, without much regard for the process or the fact that the matter before them was far, far short of fully briefed.

Kagan's dissent lays out the problems with this very clearly (I Have removed the case cites, but it is noteworthy that she cites to opinions written by very conservative members of the past-Court):

"Five months after the District Court remanded and vacated an Environmental Protection Agency rule, a group of States and industry organizations have asked us to stay the decision pending appeal, claiming that they will otherwise suffer irreparable harm. I would deny the request. This Court may stay a decision under review in a court of appeals “only in extraordinary circumstances” and “upon the weightiest considerations.” The applicants here have not met our standard because they have failed to substantiate their assertions of irreparable harm. The Court therefore has no warrant to grant emergency relief.

To obtain a stay in a case pending before an appellate court, a party (like the applicants here) must make a showing of “irreparabl[e] injur[y] absent a stay.” “A stay is an intrusion into the ordinary processes of administration and judicial review.” It disrupts the usual manner of hearing and considering an appeal before rendering a decision and granting relief. Our disruption of that normal order is justified only “rarely.” An applicant must show more than a likelihood of prevailing on the merits in the appellate court. It must also show an exceptional need for immediate relief. That means the applicant must (at the least) present evidence of irreversible injury—harm occurring during the appeals process that cannot be later redressed. And that evidence must clear a high bar. “[S]imply showing some possibility of irreparable injury fails to satisfy” our test. The applicant must offer concrete proof that irreparable harm is “likel[y]” to occur.

The applicants here have failed to meet that burden. They claim that the vacated rule gave them “protections” against States that previously “abuse[d]” their statutory authority to review infrastructure projects for compliance with water-quality standards. Application 25. But the ap-
plicants have not identified a single project that a State has obstructed in the five months since the District Court’s decision. Still more, they have not cited a single project that the court’s ruling threatens, or is likely to threaten, in the time before the appellate process concludes. The request for a stay rests on simple assertions—on conjectures, unsupported by any present-day evidence, about what States will now feel free to do. And the application fails to show that proper implementation of the reinstated regulatory regime—which existed for 50 years before the vacated rule came into effect—is incapable of countering whatever state overreach may (but may not) occur. Even the applicants’ own actions belie the need for a stay: Twice, the applicants waited a month before seeking that relief (the first time in the District Court, the second time here). While the applicants thus delayed, the appellate process went forward: The case will be fully briefed in the Court of Appeals next month. The applicants have given us no good reason to think that in the remaining time needed to decide the appeal, they will suffer irreparable harm.

By nonetheless granting relief, the Court goes astray. It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required. That renders the Court’s emergency docket not for
emergencies at all. The docket becomes only another place for merits determinations—except made without full briefing and argument. I respectfully dissent."

IN other words, well-heeled people and corporations can get special messaging on the merits from the Supreme Court, without briefing at all, and without the Court majority disclosing ANY of its reasoning. This is damaging to the process, damaging to the Court's institutional standing, and smacks of special interests having their way with the Court, while other weary travelers have to wait their turn. Kagan may well be the single smartest Justice on the Court, and is by no means some crazed liberal. That she got the Chief to sign on -- through the use of citation to earlier cases in which he and Rehnquist rejected these very sorts of decisions and decision-making end runs -- should tell us almost everything we need to know.

Very well written post Mr Coaster. I don't know if ACB is a lying POS as described by a fellow poster. The issue of this shadow docket nonsense is disconcerting. FTR some executive orders that bypass congress are also disturbing to me. When you look close there is a lot of funky stuff going on in DC.

Cradle,

We can all agree there. Some shady stuff...

Joe

Never forget, if one side can do the other side can too. My question.. what does anybody do about it? Right or wrong they are the supremes and there is no higher legal authority in the land. I feel the same way about executive orders that bypass congress and establish new laws. There is a legitimate argument that if Congress was doing their job, there would be little need for executive orders.

yes, but I think you agree that there really isn't any excuse for SCOTUS to be so routinely making decisions without even arguments or written opinions.

The seesaw between executive and legislative authorities has indeed been troubling recently, but, as you imply, at least in recent history, the problem has been the unwillingness of the two parties to compromise and enact legislative answers to pressing problems, kicking the can over to the executive branch by default...and sometimes the Executive branch over eager in response.

SCOTUS is another matter...

Holy moly, mark the date and time. We are in agreement!! I feel very uncomfortable with this shadow docket nonsense. My argument here was a fellow poster singling out one justice as a lying POS. I have been lectured time and again on this forum for my own impetuous nature that makes me say the same type of nonsense out loud. You may remember MD that I caught a rash of chit from the FLP on this Forum for calling notorious RBG buzzy. These same folks degrade another supreme court justice and one calls her a POS and the jackals turn on me. What bothers me the most, not a single one of these folks seemed upset or bothered by the insult one single little bit. Does that surprise me? No it does not.

Yes, I was the one who probably most vociferously gave you my thoughts re your comments about RBG.

I've already agreed with you on the verbiage re ACB, though I do agree with others that she's a lying hypocrite, an ideologue. I'd call that a fact, though someone else would correct me and say that's just my opinion...ok, an opinion but one I'd argue is well-deserved based on the facts.

But I also get the sense that she's probably a pretty nice gal in her regular life, just caught up too much in the ideology...impatient. I could be wrong, but that's my impression.

On the merits of the shadow docket, Roberts is right, IMO.

[Peter Brown]

Apologize in advance for the length of this post.

The problem with the so-called shadow docket and the Court's "emergency" intervention into the clean water case is best understood by comparing the the normal process by which a case reaches the Supreme Court and is then adjudicated, and the shadow docket process. Normally, as you all likely know, the Court takes cases from the final judgments of the Courts of Appeal. Those cases have been, therefore, through the trial court, which, with the litigants, is invested with the duty to develop the record of the facts that underlie the legal issues being contested. The case is then briefed and argued to the federal district judge. A reasoned decision is provided by the court. Then the record on appeal is bundled together, and the Court of Appeals examines the case for any errors of law, or misapprehension of the facts, by the lower court. They schedule briefing and hold arguments, and then issue a decision, that ultimately gets appealed to the Supreme Court. The Court then accepts the appeal -- with the full record on appeal, and all or nearly all of the issues ventilated very thoroughly, as you might expect in a case about, say, an executive agency's power to regulate matters bearing on the environment and water quality.

The shadow docket short circuits this well-known and empirically sound, time-honored process of adjudicating abstruse questions of federal statutory and constitutional law. In the case that started this recent thread/series of comments, there is no record on appeal; the case has only just reached the Court of Appeals, and that appeal is actually pending. In steps the Supreme Court, using powers that, under a long body of case authority, are only to be used in grave, grave emergencies where the threat of irreparable harm exists.

Here, the losing parties applied to the SCOTUS for a stay of the federal district judge's ruling, which had vacated a Trump era EPA regulation that prevented States from using their powers to block projects that may cause water pollution. Those parties jumped over the Court of Appeals and asked the Supreme Court to effectively pre-judge the merits...and the five conservatives did so, without much regard for the process or the fact that the matter before them was far, far short of fully briefed.

Kagan's dissent lays out the problems with this very clearly (I Have removed the case cites, but it is noteworthy that she cites to opinions written by very conservative members of the past-Court):

"Five months after the District Court remanded and vacated an Environmental Protection Agency rule, a group of States and industry organizations have asked us to stay the decision pending appeal, claiming that they will otherwise suffer irreparable harm. I would deny the request. This Court may stay a decision under review in a court of appeals “only in extraordinary circumstances” and “upon the weightiest considerations.” The applicants here have not met our standard because they have failed to substantiate their assertions of irreparable harm. The Court therefore has no warrant to grant emergency relief.

To obtain a stay in a case pending before an appellate court, a party (like the applicants here) must make a showing of “irreparabl[e] injur[y] absent a stay.” “A stay is an intrusion into the ordinary processes of administration and judicial review.” It disrupts the usual manner of hearing and considering an appeal before rendering a decision and granting relief. Our disruption of that normal order is justified only “rarely.” An applicant must show more than a likelihood of prevailing on the merits in the appellate court. It must also show an exceptional need for immediate relief. That means the applicant must (at the least) present evidence of irreversible injury—harm occurring during the appeals process that cannot be later redressed. And that evidence must clear a high bar. “[S]imply showing some possibility of irreparable injury fails to satisfy” our test. The applicant must offer concrete proof that irreparable harm is “likel[y]” to occur.

The applicants here have failed to meet that burden. They claim that the vacated rule gave them “protections” against States that previously “abuse[d]” their statutory authority to review infrastructure projects for compliance with water-quality standards. Application 25. But the ap-
plicants have not identified a single project that a State has obstructed in the five months since the District Court’s decision. Still more, they have not cited a single project that the court’s ruling threatens, or is likely to threaten, in the time before the appellate process concludes. The request for a stay rests on simple assertions—on conjectures, unsupported by any present-day evidence, about what States will now feel free to do. And the application fails to show that proper implementation of the reinstated regulatory regime—which existed for 50 years before the vacated rule came into effect—is incapable of countering whatever state overreach may (but may not) occur. Even the applicants’ own actions belie the need for a stay: Twice, the applicants waited a month before seeking that relief (the first time in the District Court, the second time here). While the applicants thus delayed, the appellate process went forward: The case will be fully briefed in the Court of Appeals next month. The applicants have given us no good reason to think that in the remaining time needed to decide the appeal, they will suffer irreparable harm.

By nonetheless granting relief, the Court goes astray. It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required. That renders the Court’s emergency docket not for
emergencies at all. The docket becomes only another place for merits determinations—except made without full briefing and argument. I respectfully dissent."

IN other words, well-heeled people and corporations can get special messaging on the merits from the Supreme Court, without briefing at all, and without the Court majority disclosing ANY of its reasoning. This is damaging to the process, damaging to the Court's institutional standing, and smacks of special interests having their way with the Court, while other weary travelers have to wait their turn. Kagan may well be the single smartest Justice on the Court, and is by no means some crazed liberal. That she got the Chief to sign on -- through the use of citation to earlier cases in which he and Rehnquist rejected these very sorts of decisions and decision-making end runs -- should tell us almost everything we need to know.

Very well written post Mr Coaster. I don't know if ACB is a lying POS as described by a fellow poster. The issue of this shadow docket nonsense is disconcerting. FTR some executive orders that bypass congress are also disturbing to me. When you look close there is a lot of funky stuff going on in DC.

Cradle,

We can all agree there. Some shady stuff...

Joe

Never forget, if one side can do the other side can too. My question.. what does anybody do about it? Right or wrong they are the supremes and there is no higher legal authority in the land. I feel the same way about executive orders that bypass congress and establish new laws. There is a legitimate argument that if Congress was doing their job, there would be little need for executive orders.

yes, but I think you agree that there really isn't any excuse for SCOTUS to be so routinely making decisions without even arguments or written opinions.

The seesaw between executive and legislative authorities has indeed been troubling recently, but, as you imply, at least in recent history, the problem has been the unwillingness of the two parties to compromise and enact legislative answers to pressing problems, kicking the can over to the executive branch by default...and sometimes the Executive branch over eager in response.

SCOTUS is another matter...

Holy moly, mark the date and time. We are in agreement!! I feel very uncomfortable with this shadow docket nonsense. My argument here was a fellow poster singling out one justice as a lying POS. I have been lectured time and again on this forum for my own impetuous nature that makes me say the same type of nonsense out loud. You may remember MD that I caught a rash of chit from the FLP on this Forum for calling notorious RBG buzzy. These same folks degrade another supreme court justice and one calls her a POS and the jackals turn on me. What bothers me the most, not a single one of these folks seemed upset or bothered by the insult one single little bit. Does that surprise me? No it does not.

Another superb post. You’re on a roll.

+1

Cradle: I traveled through your neck of the woods today. Oswego County, St Lawrence County, Syracuse, Rochester, gouvernor, cortland etc. It’s chilly today!

[cradleandshoot]

Apologize in advance for the length of this post.

The problem with the so-called shadow docket and the Court's "emergency" intervention into the clean water case is best understood by comparing the the normal process by which a case reaches the Supreme Court and is then adjudicated, and the shadow docket process. Normally, as you all likely know, the Court takes cases from the final judgments of the Courts of Appeal. Those cases have been, therefore, through the trial court, which, with the litigants, is invested with the duty to develop the record of the facts that underlie the legal issues being contested. The case is then briefed and argued to the federal district judge. A reasoned decision is provided by the court. Then the record on appeal is bundled together, and the Court of Appeals examines the case for any errors of law, or misapprehension of the facts, by the lower court. They schedule briefing and hold arguments, and then issue a decision, that ultimately gets appealed to the Supreme Court. The Court then accepts the appeal -- with the full record on appeal, and all or nearly all of the issues ventilated very thoroughly, as you might expect in a case about, say, an executive agency's power to regulate matters bearing on the environment and water quality.

The shadow docket short circuits this well-known and empirically sound, time-honored process of adjudicating abstruse questions of federal statutory and constitutional law. In the case that started this recent thread/series of comments, there is no record on appeal; the case has only just reached the Court of Appeals, and that appeal is actually pending. In steps the Supreme Court, using powers that, under a long body of case authority, are only to be used in grave, grave emergencies where the threat of irreparable harm exists.

Here, the losing parties applied to the SCOTUS for a stay of the federal district judge's ruling, which had vacated a Trump era EPA regulation that prevented States from using their powers to block projects that may cause water pollution. Those parties jumped over the Court of Appeals and asked the Supreme Court to effectively pre-judge the merits...and the five conservatives did so, without much regard for the process or the fact that the matter before them was far, far short of fully briefed.

Kagan's dissent lays out the problems with this very clearly (I Have removed the case cites, but it is noteworthy that she cites to opinions written by very conservative members of the past-Court):

"Five months after the District Court remanded and vacated an Environmental Protection Agency rule, a group of States and industry organizations have asked us to stay the decision pending appeal, claiming that they will otherwise suffer irreparable harm. I would deny the request. This Court may stay a decision under review in a court of appeals “only in extraordinary circumstances” and “upon the weightiest considerations.” The applicants here have not met our standard because they have failed to substantiate their assertions of irreparable harm. The Court therefore has no warrant to grant emergency relief.

To obtain a stay in a case pending before an appellate court, a party (like the applicants here) must make a showing of “irreparabl[e] injur[y] absent a stay.” “A stay is an intrusion into the ordinary processes of administration and judicial review.” It disrupts the usual manner of hearing and considering an appeal before rendering a decision and granting relief. Our disruption of that normal order is justified only “rarely.” An applicant must show more than a likelihood of prevailing on the merits in the appellate court. It must also show an exceptional need for immediate relief. That means the applicant must (at the least) present evidence of irreversible injury—harm occurring during the appeals process that cannot be later redressed. And that evidence must clear a high bar. “[S]imply showing some possibility of irreparable injury fails to satisfy” our test. The applicant must offer concrete proof that irreparable harm is “likel[y]” to occur.

The applicants here have failed to meet that burden. They claim that the vacated rule gave them “protections” against States that previously “abuse[d]” their statutory authority to review infrastructure projects for compliance with water-quality standards. Application 25. But the ap-
plicants have not identified a single project that a State has obstructed in the five months since the District Court’s decision. Still more, they have not cited a single project that the court’s ruling threatens, or is likely to threaten, in the time before the appellate process concludes. The request for a stay rests on simple assertions—on conjectures, unsupported by any present-day evidence, about what States will now feel free to do. And the application fails to show that proper implementation of the reinstated regulatory regime—which existed for 50 years before the vacated rule came into effect—is incapable of countering whatever state overreach may (but may not) occur. Even the applicants’ own actions belie the need for a stay: Twice, the applicants waited a month before seeking that relief (the first time in the District Court, the second time here). While the applicants thus delayed, the appellate process went forward: The case will be fully briefed in the Court of Appeals next month. The applicants have given us no good reason to think that in the remaining time needed to decide the appeal, they will suffer irreparable harm.

By nonetheless granting relief, the Court goes astray. It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required. That renders the Court’s emergency docket not for
emergencies at all. The docket becomes only another place for merits determinations—except made without full briefing and argument. I respectfully dissent."

IN other words, well-heeled people and corporations can get special messaging on the merits from the Supreme Court, without briefing at all, and without the Court majority disclosing ANY of its reasoning. This is damaging to the process, damaging to the Court's institutional standing, and smacks of special interests having their way with the Court, while other weary travelers have to wait their turn. Kagan may well be the single smartest Justice on the Court, and is by no means some crazed liberal. That she got the Chief to sign on -- through the use of citation to earlier cases in which he and Rehnquist rejected these very sorts of decisions and decision-making end runs -- should tell us almost everything we need to know.

Very well written post Mr Coaster. I don't know if ACB is a lying POS as described by a fellow poster. The issue of this shadow docket nonsense is disconcerting. FTR some executive orders that bypass congress are also disturbing to me. When you look close there is a lot of funky stuff going on in DC.

Cradle,

We can all agree there. Some shady stuff...

Joe

Never forget, if one side can do the other side can too. My question.. what does anybody do about it? Right or wrong they are the supremes and there is no higher legal authority in the land. I feel the same way about executive orders that bypass congress and establish new laws. There is a legitimate argument that if Congress was doing their job, there would be little need for executive orders.

yes, but I think you agree that there really isn't any excuse for SCOTUS to be so routinely making decisions without even arguments or written opinions.

The seesaw between executive and legislative authorities has indeed been troubling recently, but, as you imply, at least in recent history, the problem has been the unwillingness of the two parties to compromise and enact legislative answers to pressing problems, kicking the can over to the executive branch by default...and sometimes the Executive branch over eager in response.

SCOTUS is another matter...

Holy moly, mark the date and time. We are in agreement!! I feel very uncomfortable with this shadow docket nonsense. My argument here was a fellow poster singling out one justice as a lying POS. I have been lectured time and again on this forum for my own impetuous nature that makes me say the same type of nonsense out loud. You may remember MD that I caught a rash of chit from the FLP on this Forum for calling notorious RBG buzzy. These same folks degrade another supreme court justice and one calls her a POS and the jackals turn on me. What bothers me the most, not a single one of these folks seemed upset or bothered by the insult one single little bit. Does that surprise me? No it does not.

Yes, I was the one who probably most vociferously gave you my thoughts re your comments about RBG.

I've already agreed with you on the verbiage re ACB, though I do agree with others that she's a lying hypocrite, an ideologue. I'd call that a fact, though someone else would correct me and say that's just my opinion...ok, an opinion but one I'd argue is well-deserved based on the facts.

But I also get the sense that she's probably a pretty nice gal in her regular life, just caught up too much in the ideology...impatient. I could be wrong, but that's my impression.

On the merits of the shadow docket, Roberts is right, IMO.

IMO when you want to accuse ANY supreme court justice of being a liar you better have a rock solid case you could beyond a shadow of a doubt. You can call her an ideologue and could use that same term for each of the other 8 justices in one extreme or another. Hell being an ideologue is probably the first thing you write on your resume. It ain't like the POTUS looking to nominate you is hoping your middle of the road and wishy washy. They want their nominee to represent their ideology and their party. If you want to call ACB a liar, that is your opinion. The one thing I know is that is your opinion and in the world of the power wielded by 9 SCOTUS justices it doesn't really matter a hill of beans does it?

[cradleandshoot]

Apologize in advance for the length of this post.

The problem with the so-called shadow docket and the Court's "emergency" intervention into the clean water case is best understood by comparing the the normal process by which a case reaches the Supreme Court and is then adjudicated, and the shadow docket process. Normally, as you all likely know, the Court takes cases from the final judgments of the Courts of Appeal. Those cases have been, therefore, through the trial court, which, with the litigants, is invested with the duty to develop the record of the facts that underlie the legal issues being contested. The case is then briefed and argued to the federal district judge. A reasoned decision is provided by the court. Then the record on appeal is bundled together, and the Court of Appeals examines the case for any errors of law, or misapprehension of the facts, by the lower court. They schedule briefing and hold arguments, and then issue a decision, that ultimately gets appealed to the Supreme Court. The Court then accepts the appeal -- with the full record on appeal, and all or nearly all of the issues ventilated very thoroughly, as you might expect in a case about, say, an executive agency's power to regulate matters bearing on the environment and water quality.

The shadow docket short circuits this well-known and empirically sound, time-honored process of adjudicating abstruse questions of federal statutory and constitutional law. In the case that started this recent thread/series of comments, there is no record on appeal; the case has only just reached the Court of Appeals, and that appeal is actually pending. In steps the Supreme Court, using powers that, under a long body of case authority, are only to be used in grave, grave emergencies where the threat of irreparable harm exists.

Here, the losing parties applied to the SCOTUS for a stay of the federal district judge's ruling, which had vacated a Trump era EPA regulation that prevented States from using their powers to block projects that may cause water pollution. Those parties jumped over the Court of Appeals and asked the Supreme Court to effectively pre-judge the merits...and the five conservatives did so, without much regard for the process or the fact that the matter before them was far, far short of fully briefed.

Kagan's dissent lays out the problems with this very clearly (I Have removed the case cites, but it is noteworthy that she cites to opinions written by very conservative members of the past-Court):

"Five months after the District Court remanded and vacated an Environmental Protection Agency rule, a group of States and industry organizations have asked us to stay the decision pending appeal, claiming that they will otherwise suffer irreparable harm. I would deny the request. This Court may stay a decision under review in a court of appeals “only in extraordinary circumstances” and “upon the weightiest considerations.” The applicants here have not met our standard because they have failed to substantiate their assertions of irreparable harm. The Court therefore has no warrant to grant emergency relief.

To obtain a stay in a case pending before an appellate court, a party (like the applicants here) must make a showing of “irreparabl[e] injur[y] absent a stay.” “A stay is an intrusion into the ordinary processes of administration and judicial review.” It disrupts the usual manner of hearing and considering an appeal before rendering a decision and granting relief. Our disruption of that normal order is justified only “rarely.” An applicant must show more than a likelihood of prevailing on the merits in the appellate court. It must also show an exceptional need for immediate relief. That means the applicant must (at the least) present evidence of irreversible injury—harm occurring during the appeals process that cannot be later redressed. And that evidence must clear a high bar. “[S]imply showing some possibility of irreparable injury fails to satisfy” our test. The applicant must offer concrete proof that irreparable harm is “likel[y]” to occur.

The applicants here have failed to meet that burden. They claim that the vacated rule gave them “protections” against States that previously “abuse[d]” their statutory authority to review infrastructure projects for compliance with water-quality standards. Application 25. But the ap-
plicants have not identified a single project that a State has obstructed in the five months since the District Court’s decision. Still more, they have not cited a single project that the court’s ruling threatens, or is likely to threaten, in the time before the appellate process concludes. The request for a stay rests on simple assertions—on conjectures, unsupported by any present-day evidence, about what States will now feel free to do. And the application fails to show that proper implementation of the reinstated regulatory regime—which existed for 50 years before the vacated rule came into effect—is incapable of countering whatever state overreach may (but may not) occur. Even the applicants’ own actions belie the need for a stay: Twice, the applicants waited a month before seeking that relief (the first time in the District Court, the second time here). While the applicants thus delayed, the appellate process went forward: The case will be fully briefed in the Court of Appeals next month. The applicants have given us no good reason to think that in the remaining time needed to decide the appeal, they will suffer irreparable harm.

By nonetheless granting relief, the Court goes astray. It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required. That renders the Court’s emergency docket not for
emergencies at all. The docket becomes only another place for merits determinations—except made without full briefing and argument. I respectfully dissent."

IN other words, well-heeled people and corporations can get special messaging on the merits from the Supreme Court, without briefing at all, and without the Court majority disclosing ANY of its reasoning. This is damaging to the process, damaging to the Court's institutional standing, and smacks of special interests having their way with the Court, while other weary travelers have to wait their turn. Kagan may well be the single smartest Justice on the Court, and is by no means some crazed liberal. That she got the Chief to sign on -- through the use of citation to earlier cases in which he and Rehnquist rejected these very sorts of decisions and decision-making end runs -- should tell us almost everything we need to know.

Very well written post Mr Coaster. I don't know if ACB is a lying POS as described by a fellow poster. The issue of this shadow docket nonsense is disconcerting. FTR some executive orders that bypass congress are also disturbing to me. When you look close there is a lot of funky stuff going on in DC.

Cradle,

We can all agree there. Some shady stuff...

Joe

Never forget, if one side can do the other side can too. My question.. what does anybody do about it? Right or wrong they are the supremes and there is no higher legal authority in the land. I feel the same way about executive orders that bypass congress and establish new laws. There is a legitimate argument that if Congress was doing their job, there would be little need for executive orders.

yes, but I think you agree that there really isn't any excuse for SCOTUS to be so routinely making decisions without even arguments or written opinions.

The seesaw between executive and legislative authorities has indeed been troubling recently, but, as you imply, at least in recent history, the problem has been the unwillingness of the two parties to compromise and enact legislative answers to pressing problems, kicking the can over to the executive branch by default...and sometimes the Executive branch over eager in response.

SCOTUS is another matter...

Holy moly, mark the date and time. We are in agreement!! I feel very uncomfortable with this shadow docket nonsense. My argument here was a fellow poster singling out one justice as a lying POS. I have been lectured time and again on this forum for my own impetuous nature that makes me say the same type of nonsense out loud. You may remember MD that I caught a rash of chit from the FLP on this Forum for calling notorious RBG buzzy. These same folks degrade another supreme court justice and one calls her a POS and the jackals turn on me. What bothers me the most, not a single one of these folks seemed upset or bothered by the insult one single little bit. Does that surprise me? No it does not.

Another superb post. You’re on a roll.

+1

Cradle: I traveled through your neck of the woods today. Oswego County, St Lawrence County, Syracuse, Rochester, gouvernor, cortland etc. It’s chilly today!

Your being very generous. The weather here sucked today.

[ggait]

I've already agreed with you on the verbiage re ACB, though I do agree with others that she's a lying hypocrite, an ideologue. I'd call that a fact, though someone else would correct me and say that's just my opinion...ok, an opinion but one I'd argue is well-deserved based on the facts.

Here's a better way to describe it.

All the SCOTUS judges (Breyer, ACB, Scalia, whoever) speak often and at length about how they are not outcome-oriented politicians. How they are not legislators wearing robes. I think they all truly believe what they say. They are not making legislative judgments -- they are just following their personal "judicial philosophy." Be it textualism, originalism, strict construction, living Constitution etc. etc. etc.

While ACB or Breyer or whoever truly believe that stuff, it does not matter one iota. Judicial philosophies are not neutral and outcomes are easily discerned from judicial philosophy. So Trump and the GOP Senate minority do not care at all why ACB is going to vote to overturn RvW in June. They just know she will do that. And that's why she got nominated.

So even if ACB is truly voting based on her "judicial philosophy", the outcome is exactly the same as if she was voting based on partisanship and ideology.

Given how many straight line partisan vote outcomes there are, it is just silly for the SCOTUS judges to keep bleating about how it has nothing to do with politics. No one except law school professors care. And note the absurdity of ACB proclaiming how far above politics she is. In a speech delivered at...the Ronald Reagan Library. Just keep it to yourself ACB and spare us the self-serving talk. It is embarrassing.

CJ Roberts is the one guy who really gets how bad this problem is. CJR also understands that this is much more of a problem on the right than the left. But he can't do anything about it.

[MDlaxfan76]

Apologize in advance for the length of this post.

The problem with the so-called shadow docket and the Court's "emergency" intervention into the clean water case is best understood by comparing the the normal process by which a case reaches the Supreme Court and is then adjudicated, and the shadow docket process. Normally, as you all likely know, the Court takes cases from the final judgments of the Courts of Appeal. Those cases have been, therefore, through the trial court, which, with the litigants, is invested with the duty to develop the record of the facts that underlie the legal issues being contested. The case is then briefed and argued to the federal district judge. A reasoned decision is provided by the court. Then the record on appeal is bundled together, and the Court of Appeals examines the case for any errors of law, or misapprehension of the facts, by the lower court. They schedule briefing and hold arguments, and then issue a decision, that ultimately gets appealed to the Supreme Court. The Court then accepts the appeal -- with the full record on appeal, and all or nearly all of the issues ventilated very thoroughly, as you might expect in a case about, say, an executive agency's power to regulate matters bearing on the environment and water quality.

The shadow docket short circuits this well-known and empirically sound, time-honored process of adjudicating abstruse questions of federal statutory and constitutional law. In the case that started this recent thread/series of comments, there is no record on appeal; the case has only just reached the Court of Appeals, and that appeal is actually pending. In steps the Supreme Court, using powers that, under a long body of case authority, are only to be used in grave, grave emergencies where the threat of irreparable harm exists.

Here, the losing parties applied to the SCOTUS for a stay of the federal district judge's ruling, which had vacated a Trump era EPA regulation that prevented States from using their powers to block projects that may cause water pollution. Those parties jumped over the Court of Appeals and asked the Supreme Court to effectively pre-judge the merits...and the five conservatives did so, without much regard for the process or the fact that the matter before them was far, far short of fully briefed.

Kagan's dissent lays out the problems with this very clearly (I Have removed the case cites, but it is noteworthy that she cites to opinions written by very conservative members of the past-Court):

"Five months after the District Court remanded and vacated an Environmental Protection Agency rule, a group of States and industry organizations have asked us to stay the decision pending appeal, claiming that they will otherwise suffer irreparable harm. I would deny the request. This Court may stay a decision under review in a court of appeals “only in extraordinary circumstances” and “upon the weightiest considerations.” The applicants here have not met our standard because they have failed to substantiate their assertions of irreparable harm. The Court therefore has no warrant to grant emergency relief.

To obtain a stay in a case pending before an appellate court, a party (like the applicants here) must make a showing of “irreparabl[e] injur[y] absent a stay.” “A stay is an intrusion into the ordinary processes of administration and judicial review.” It disrupts the usual manner of hearing and considering an appeal before rendering a decision and granting relief. Our disruption of that normal order is justified only “rarely.” An applicant must show more than a likelihood of prevailing on the merits in the appellate court. It must also show an exceptional need for immediate relief. That means the applicant must (at the least) present evidence of irreversible injury—harm occurring during the appeals process that cannot be later redressed. And that evidence must clear a high bar. “[S]imply showing some possibility of irreparable injury fails to satisfy” our test. The applicant must offer concrete proof that irreparable harm is “likel[y]” to occur.

The applicants here have failed to meet that burden. They claim that the vacated rule gave them “protections” against States that previously “abuse[d]” their statutory authority to review infrastructure projects for compliance with water-quality standards. Application 25. But the ap-
plicants have not identified a single project that a State has obstructed in the five months since the District Court’s decision. Still more, they have not cited a single project that the court’s ruling threatens, or is likely to threaten, in the time before the appellate process concludes. The request for a stay rests on simple assertions—on conjectures, unsupported by any present-day evidence, about what States will now feel free to do. And the application fails to show that proper implementation of the reinstated regulatory regime—which existed for 50 years before the vacated rule came into effect—is incapable of countering whatever state overreach may (but may not) occur. Even the applicants’ own actions belie the need for a stay: Twice, the applicants waited a month before seeking that relief (the first time in the District Court, the second time here). While the applicants thus delayed, the appellate process went forward: The case will be fully briefed in the Court of Appeals next month. The applicants have given us no good reason to think that in the remaining time needed to decide the appeal, they will suffer irreparable harm.

By nonetheless granting relief, the Court goes astray. It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required. That renders the Court’s emergency docket not for
emergencies at all. The docket becomes only another place for merits determinations—except made without full briefing and argument. I respectfully dissent."

IN other words, well-heeled people and corporations can get special messaging on the merits from the Supreme Court, without briefing at all, and without the Court majority disclosing ANY of its reasoning. This is damaging to the process, damaging to the Court's institutional standing, and smacks of special interests having their way with the Court, while other weary travelers have to wait their turn. Kagan may well be the single smartest Justice on the Court, and is by no means some crazed liberal. That she got the Chief to sign on -- through the use of citation to earlier cases in which he and Rehnquist rejected these very sorts of decisions and decision-making end runs -- should tell us almost everything we need to know.

Very well written post Mr Coaster. I don't know if ACB is a lying POS as described by a fellow poster. The issue of this shadow docket nonsense is disconcerting. FTR some executive orders that bypass congress are also disturbing to me. When you look close there is a lot of funky stuff going on in DC.

Cradle,

We can all agree there. Some shady stuff...

Joe

Never forget, if one side can do the other side can too. My question.. what does anybody do about it? Right or wrong they are the supremes and there is no higher legal authority in the land. I feel the same way about executive orders that bypass congress and establish new laws. There is a legitimate argument that if Congress was doing their job, there would be little need for executive orders.

yes, but I think you agree that there really isn't any excuse for SCOTUS to be so routinely making decisions without even arguments or written opinions.

The seesaw between executive and legislative authorities has indeed been troubling recently, but, as you imply, at least in recent history, the problem has been the unwillingness of the two parties to compromise and enact legislative answers to pressing problems, kicking the can over to the executive branch by default...and sometimes the Executive branch over eager in response.

SCOTUS is another matter...

Holy moly, mark the date and time. We are in agreement!! I feel very uncomfortable with this shadow docket nonsense. My argument here was a fellow poster singling out one justice as a lying POS. I have been lectured time and again on this forum for my own impetuous nature that makes me say the same type of nonsense out loud. You may remember MD that I caught a rash of chit from the FLP on this Forum for calling notorious RBG buzzy. These same folks degrade another supreme court justice and one calls her a POS and the jackals turn on me. What bothers me the most, not a single one of these folks seemed upset or bothered by the insult one single little bit. Does that surprise me? No it does not.

Yes, I was the one who probably most vociferously gave you my thoughts re your comments about RBG.

I've already agreed with you on the verbiage re ACB, though I do agree with others that she's a lying hypocrite, an ideologue. I'd call that a fact, though someone else would correct me and say that's just my opinion...ok, an opinion but one I'd argue is well-deserved based on the facts.

But I also get the sense that she's probably a pretty nice gal in her regular life, just caught up too much in the ideology...impatient. I could be wrong, but that's my impression.

On the merits of the shadow docket, Roberts is right, IMO.

IMO when you want to accuse ANY supreme court justice of being a liar you better have a rock solid case you could beyond a shadow of a doubt. You can call her an ideologue and could use that same term for each of the other 8 justices in one extreme or another. Hell being an ideologue is probably the first thing you write on your resume. It ain't like the POTUS looking to nominate you is hoping your middle of the road and wishy washy. They want their nominee to represent their ideology and their party. If you want to call ACB a liar, that is your opinion. The one thing I know is that is your opinion and in the world of the power wielded by 9 SCOTUS justices it doesn't really matter a hill of beans does it?

Yes, just an opinion, but we just went through the exact example that leads one to the conclusion that she was lying, and hypocritical...I think she's plenty smart enough to have realized that what she was saying was what people wanted to hear but was a complete crock in terms of her commitment to actually do what she was claiming.

But no, I quite disagree as to wanting ideologues as SCOTUS justices. Quite the opposite. Sure, they will lean a direction, bringing different experiences and perspectives, but they should not be ideological. Again, my opinion.

[Peter Brown]

Apologize in advance for the length of this post.

The problem with the so-called shadow docket and the Court's "emergency" intervention into the clean water case is best understood by comparing the the normal process by which a case reaches the Supreme Court and is then adjudicated, and the shadow docket process. Normally, as you all likely know, the Court takes cases from the final judgments of the Courts of Appeal. Those cases have been, therefore, through the trial court, which, with the litigants, is invested with the duty to develop the record of the facts that underlie the legal issues being contested. The case is then briefed and argued to the federal district judge. A reasoned decision is provided by the court. Then the record on appeal is bundled together, and the Court of Appeals examines the case for any errors of law, or misapprehension of the facts, by the lower court. They schedule briefing and hold arguments, and then issue a decision, that ultimately gets appealed to the Supreme Court. The Court then accepts the appeal -- with the full record on appeal, and all or nearly all of the issues ventilated very thoroughly, as you might expect in a case about, say, an executive agency's power to regulate matters bearing on the environment and water quality.

The shadow docket short circuits this well-known and empirically sound, time-honored process of adjudicating abstruse questions of federal statutory and constitutional law. In the case that started this recent thread/series of comments, there is no record on appeal; the case has only just reached the Court of Appeals, and that appeal is actually pending. In steps the Supreme Court, using powers that, under a long body of case authority, are only to be used in grave, grave emergencies where the threat of irreparable harm exists.

Here, the losing parties applied to the SCOTUS for a stay of the federal district judge's ruling, which had vacated a Trump era EPA regulation that prevented States from using their powers to block projects that may cause water pollution. Those parties jumped over the Court of Appeals and asked the Supreme Court to effectively pre-judge the merits...and the five conservatives did so, without much regard for the process or the fact that the matter before them was far, far short of fully briefed.

Kagan's dissent lays out the problems with this very clearly (I Have removed the case cites, but it is noteworthy that she cites to opinions written by very conservative members of the past-Court):

"Five months after the District Court remanded and vacated an Environmental Protection Agency rule, a group of States and industry organizations have asked us to stay the decision pending appeal, claiming that they will otherwise suffer irreparable harm. I would deny the request. This Court may stay a decision under review in a court of appeals “only in extraordinary circumstances” and “upon the weightiest considerations.” The applicants here have not met our standard because they have failed to substantiate their assertions of irreparable harm. The Court therefore has no warrant to grant emergency relief.

To obtain a stay in a case pending before an appellate court, a party (like the applicants here) must make a showing of “irreparabl[e] injur[y] absent a stay.” “A stay is an intrusion into the ordinary processes of administration and judicial review.” It disrupts the usual manner of hearing and considering an appeal before rendering a decision and granting relief. Our disruption of that normal order is justified only “rarely.” An applicant must show more than a likelihood of prevailing on the merits in the appellate court. It must also show an exceptional need for immediate relief. That means the applicant must (at the least) present evidence of irreversible injury—harm occurring during the appeals process that cannot be later redressed. And that evidence must clear a high bar. “[S]imply showing some possibility of irreparable injury fails to satisfy” our test. The applicant must offer concrete proof that irreparable harm is “likel[y]” to occur.

The applicants here have failed to meet that burden. They claim that the vacated rule gave them “protections” against States that previously “abuse[d]” their statutory authority to review infrastructure projects for compliance with water-quality standards. Application 25. But the ap-
plicants have not identified a single project that a State has obstructed in the five months since the District Court’s decision. Still more, they have not cited a single project that the court’s ruling threatens, or is likely to threaten, in the time before the appellate process concludes. The request for a stay rests on simple assertions—on conjectures, unsupported by any present-day evidence, about what States will now feel free to do. And the application fails to show that proper implementation of the reinstated regulatory regime—which existed for 50 years before the vacated rule came into effect—is incapable of countering whatever state overreach may (but may not) occur. Even the applicants’ own actions belie the need for a stay: Twice, the applicants waited a month before seeking that relief (the first time in the District Court, the second time here). While the applicants thus delayed, the appellate process went forward: The case will be fully briefed in the Court of Appeals next month. The applicants have given us no good reason to think that in the remaining time needed to decide the appeal, they will suffer irreparable harm.

By nonetheless granting relief, the Court goes astray. It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required. That renders the Court’s emergency docket not for
emergencies at all. The docket becomes only another place for merits determinations—except made without full briefing and argument. I respectfully dissent."

IN other words, well-heeled people and corporations can get special messaging on the merits from the Supreme Court, without briefing at all, and without the Court majority disclosing ANY of its reasoning. This is damaging to the process, damaging to the Court's institutional standing, and smacks of special interests having their way with the Court, while other weary travelers have to wait their turn. Kagan may well be the single smartest Justice on the Court, and is by no means some crazed liberal. That she got the Chief to sign on -- through the use of citation to earlier cases in which he and Rehnquist rejected these very sorts of decisions and decision-making end runs -- should tell us almost everything we need to know.

Very well written post Mr Coaster. I don't know if ACB is a lying POS as described by a fellow poster. The issue of this shadow docket nonsense is disconcerting. FTR some executive orders that bypass congress are also disturbing to me. When you look close there is a lot of funky stuff going on in DC.

Cradle,

We can all agree there. Some shady stuff...

Joe

Never forget, if one side can do the other side can too. My question.. what does anybody do about it? Right or wrong they are the supremes and there is no higher legal authority in the land. I feel the same way about executive orders that bypass congress and establish new laws. There is a legitimate argument that if Congress was doing their job, there would be little need for executive orders.

yes, but I think you agree that there really isn't any excuse for SCOTUS to be so routinely making decisions without even arguments or written opinions.

The seesaw between executive and legislative authorities has indeed been troubling recently, but, as you imply, at least in recent history, the problem has been the unwillingness of the two parties to compromise and enact legislative answers to pressing problems, kicking the can over to the executive branch by default...and sometimes the Executive branch over eager in response.

SCOTUS is another matter...

Holy moly, mark the date and time. We are in agreement!! I feel very uncomfortable with this shadow docket nonsense. My argument here was a fellow poster singling out one justice as a lying POS. I have been lectured time and again on this forum for my own impetuous nature that makes me say the same type of nonsense out loud. You may remember MD that I caught a rash of chit from the FLP on this Forum for calling notorious RBG buzzy. These same folks degrade another supreme court justice and one calls her a POS and the jackals turn on me. What bothers me the most, not a single one of these folks seemed upset or bothered by the insult one single little bit. Does that surprise me? No it does not.

Another superb post. You’re on a roll.

+1

Cradle: I traveled through your neck of the woods today. Oswego County, St Lawrence County, Syracuse, Rochester, gouvernor, cortland etc. It’s chilly today!

Your being very generous. The weather here sucked today.

It’s definitely not postcard perfect.

Rainy, drizzly, at best mid 40’s. The restaurant was great though as are the hotel accommodations.

[Typical Lax Dad]

God Bless America.

[Seacoaster(1)]

I've already agreed with you on the verbiage re ACB, though I do agree with others that she's a lying hypocrite, an ideologue. I'd call that a fact, though someone else would correct me and say that's just my opinion...ok, an opinion but one I'd argue is well-deserved based on the facts.

Here's a better way to describe it.

All the SCOTUS judges (Breyer, ACB, Scalia, whoever) speak often and at length about how they are not outcome-oriented politicians. How they are not legislators wearing robes. I think they all truly believe what they say. They are not making legislative judgments -- they are just following their personal "judicial philosophy." Be it textualism, originalism, strict construction, living Constitution etc. etc. etc.

While ACB or Breyer or whoever truly believe that stuff, it does not matter one iota. Judicial philosophies are not neutral and outcomes are easily discerned from judicial philosophy. So Trump and the GOP Senate minority do not care at all why ACB is going to vote to overturn RvW in June. They just know she will do that. And that's why she got nominated.

So even if ACB is truly voting based on her "judicial philosophy", the outcome is exactly the same as if she was voting based on partisanship and ideology.

Given how many straight line partisan vote outcomes there are, it is just silly for the SCOTUS judges to keep bleating about how it has nothing to do with politics. No one except law school professors care. And note the absurdity of ACB proclaiming how far above politics she is. In a speech delivered at...the Ronald Reagan Library. Just keep it to yourself ACB and spare us the self-serving talk. It is embarrassing.

CJ Roberts is the one guy who really gets how bad this problem is. CJR also understands that this is much more of a problem on the right than the left. But he can't do anything about it.

Good post, as usual.

[cradleandshoot]

Apologize in advance for the length of this post.

The problem with the so-called shadow docket and the Court's "emergency" intervention into the clean water case is best understood by comparing the the normal process by which a case reaches the Supreme Court and is then adjudicated, and the shadow docket process. Normally, as you all likely know, the Court takes cases from the final judgments of the Courts of Appeal. Those cases have been, therefore, through the trial court, which, with the litigants, is invested with the duty to develop the record of the facts that underlie the legal issues being contested. The case is then briefed and argued to the federal district judge. A reasoned decision is provided by the court. Then the record on appeal is bundled together, and the Court of Appeals examines the case for any errors of law, or misapprehension of the facts, by the lower court. They schedule briefing and hold arguments, and then issue a decision, that ultimately gets appealed to the Supreme Court. The Court then accepts the appeal -- with the full record on appeal, and all or nearly all of the issues ventilated very thoroughly, as you might expect in a case about, say, an executive agency's power to regulate matters bearing on the environment and water quality.

The shadow docket short circuits this well-known and empirically sound, time-honored process of adjudicating abstruse questions of federal statutory and constitutional law. In the case that started this recent thread/series of comments, there is no record on appeal; the case has only just reached the Court of Appeals, and that appeal is actually pending. In steps the Supreme Court, using powers that, under a long body of case authority, are only to be used in grave, grave emergencies where the threat of irreparable harm exists.

Here, the losing parties applied to the SCOTUS for a stay of the federal district judge's ruling, which had vacated a Trump era EPA regulation that prevented States from using their powers to block projects that may cause water pollution. Those parties jumped over the Court of Appeals and asked the Supreme Court to effectively pre-judge the merits...and the five conservatives did so, without much regard for the process or the fact that the matter before them was far, far short of fully briefed.

Kagan's dissent lays out the problems with this very clearly (I Have removed the case cites, but it is noteworthy that she cites to opinions written by very conservative members of the past-Court):

"Five months after the District Court remanded and vacated an Environmental Protection Agency rule, a group of States and industry organizations have asked us to stay the decision pending appeal, claiming that they will otherwise suffer irreparable harm. I would deny the request. This Court may stay a decision under review in a court of appeals “only in extraordinary circumstances” and “upon the weightiest considerations.” The applicants here have not met our standard because they have failed to substantiate their assertions of irreparable harm. The Court therefore has no warrant to grant emergency relief.

To obtain a stay in a case pending before an appellate court, a party (like the applicants here) must make a showing of “irreparabl[e] injur[y] absent a stay.” “A stay is an intrusion into the ordinary processes of administration and judicial review.” It disrupts the usual manner of hearing and considering an appeal before rendering a decision and granting relief. Our disruption of that normal order is justified only “rarely.” An applicant must show more than a likelihood of prevailing on the merits in the appellate court. It must also show an exceptional need for immediate relief. That means the applicant must (at the least) present evidence of irreversible injury—harm occurring during the appeals process that cannot be later redressed. And that evidence must clear a high bar. “[S]imply showing some possibility of irreparable injury fails to satisfy” our test. The applicant must offer concrete proof that irreparable harm is “likel[y]” to occur.

The applicants here have failed to meet that burden. They claim that the vacated rule gave them “protections” against States that previously “abuse[d]” their statutory authority to review infrastructure projects for compliance with water-quality standards. Application 25. But the ap-
plicants have not identified a single project that a State has obstructed in the five months since the District Court’s decision. Still more, they have not cited a single project that the court’s ruling threatens, or is likely to threaten, in the time before the appellate process concludes. The request for a stay rests on simple assertions—on conjectures, unsupported by any present-day evidence, about what States will now feel free to do. And the application fails to show that proper implementation of the reinstated regulatory regime—which existed for 50 years before the vacated rule came into effect—is incapable of countering whatever state overreach may (but may not) occur. Even the applicants’ own actions belie the need for a stay: Twice, the applicants waited a month before seeking that relief (the first time in the District Court, the second time here). While the applicants thus delayed, the appellate process went forward: The case will be fully briefed in the Court of Appeals next month. The applicants have given us no good reason to think that in the remaining time needed to decide the appeal, they will suffer irreparable harm.

By nonetheless granting relief, the Court goes astray. It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required. That renders the Court’s emergency docket not for
emergencies at all. The docket becomes only another place for merits determinations—except made without full briefing and argument. I respectfully dissent."

IN other words, well-heeled people and corporations can get special messaging on the merits from the Supreme Court, without briefing at all, and without the Court majority disclosing ANY of its reasoning. This is damaging to the process, damaging to the Court's institutional standing, and smacks of special interests having their way with the Court, while other weary travelers have to wait their turn. Kagan may well be the single smartest Justice on the Court, and is by no means some crazed liberal. That she got the Chief to sign on -- through the use of citation to earlier cases in which he and Rehnquist rejected these very sorts of decisions and decision-making end runs -- should tell us almost everything we need to know.

Very well written post Mr Coaster. I don't know if ACB is a lying POS as described by a fellow poster. The issue of this shadow docket nonsense is disconcerting. FTR some executive orders that bypass congress are also disturbing to me. When you look close there is a lot of funky stuff going on in DC.

Cradle,

We can all agree there. Some shady stuff...

Joe

Never forget, if one side can do the other side can too. My question.. what does anybody do about it? Right or wrong they are the supremes and there is no higher legal authority in the land. I feel the same way about executive orders that bypass congress and establish new laws. There is a legitimate argument that if Congress was doing their job, there would be little need for executive orders.

yes, but I think you agree that there really isn't any excuse for SCOTUS to be so routinely making decisions without even arguments or written opinions.

The seesaw between executive and legislative authorities has indeed been troubling recently, but, as you imply, at least in recent history, the problem has been the unwillingness of the two parties to compromise and enact legislative answers to pressing problems, kicking the can over to the executive branch by default...and sometimes the Executive branch over eager in response.

SCOTUS is another matter...

Holy moly, mark the date and time. We are in agreement!! I feel very uncomfortable with this shadow docket nonsense. My argument here was a fellow poster singling out one justice as a lying POS. I have been lectured time and again on this forum for my own impetuous nature that makes me say the same type of nonsense out loud. You may remember MD that I caught a rash of chit from the FLP on this Forum for calling notorious RBG buzzy. These same folks degrade another supreme court justice and one calls her a POS and the jackals turn on me. What bothers me the most, not a single one of these folks seemed upset or bothered by the insult one single little bit. Does that surprise me? No it does not.

Yes, I was the one who probably most vociferously gave you my thoughts re your comments about RBG.

I've already agreed with you on the verbiage re ACB, though I do agree with others that she's a lying hypocrite, an ideologue. I'd call that a fact, though someone else would correct me and say that's just my opinion...ok, an opinion but one I'd argue is well-deserved based on the facts.

But I also get the sense that she's probably a pretty nice gal in her regular life, just caught up too much in the ideology...impatient. I could be wrong, but that's my impression.

On the merits of the shadow docket, Roberts is right, IMO.

IMO when you want to accuse ANY supreme court justice of being a liar you better have a rock solid case you could beyond a shadow of a doubt. You can call her an ideologue and could use that same term for each of the other 8 justices in one extreme or another. Hell being an ideologue is probably the first thing you write on your resume. It ain't like the POTUS looking to nominate you is hoping your middle of the road and wishy washy. They want their nominee to represent their ideology and their party. If you want to call ACB a liar, that is your opinion. The one thing I know is that is your opinion and in the world of the power wielded by 9 SCOTUS justices it doesn't really matter a hill of beans does it?

Yes, just an opinion, but we just went through the exact example that leads one to the conclusion that she was lying, and hypocritical...I think she's plenty smart enough to have realized that what she was saying was what people wanted to hear but was a complete crock in terms of her commitment to actually do what she was claiming.

But no, I quite disagree as to wanting ideologues as SCOTUS justices. Quite the opposite. Sure, they will lean a direction, bringing different experiences and perspectives, but they should not be ideological. Again, my opinion.

How could any nominee in recent times not be an ideologue?? You think the sitting POTUS nominates him/her because of their beautiful, harmonic voice in the church choir on Sunday? They nominate him/her because they already know and understand what their ideology is and where they stand. You don't have to tell them how they should rule on any given issue to come before the supreme court, wink wink nod nod... you already know what their legal decision will be. Justice Brown will be no different. What do you think her predetermined position will be on any 2nd amendment case she will hear and have to make a decision on??? She really will not have to listen to any arguments, i am certain her mind is already made up. The good thing is that for now, her opinion is a voice in the vast wilderness that will have no effect on how many cases will be decided. I'm certain her dissents will be a thing a beauty to the FLP idealogues who have already placed her on the empty pedestal formerly occupied by the notorious RBG. I hope she will eventually earn it?

[Typical Lax Dad]

https://www.ctpost.com/news/article/For ... 064973.php

Pro pedophile judge.

[Seacoaster(1)]

Article on the Court:

https://www.nytimes.com/2022/04/14/opin ... ckson.html

"The increasingly bitter partisan battles over Supreme Court nominations reflect the degree of influence that a single court of nine unelected judges exercises over life in America. As Ketanji Brown Jackson’s confirmation hearing underscored, the role partisan politics plays on the court is an issue that is not going away.

Supreme Court justices and most other judges insist that politics do not enter into their work. But there is a straightforward metric available that reveals what appears to be a calculated political motivation in judicial decision-making: the timing of judges’ retirements. And increasingly, federal judges have been calibrating their retirements so that their successors will be nominated by a president of the same party who nominated them. Given the lifetime tenure of federal judges, this pattern has long-term ramifications for the courts.

When asked, many judges say politics is not a reference point for them. Amy Coney Barrett, who took her seat on the Supreme Court in the fall of 2020 following the death of Justice Ruth Bader Ginsburg, told students at the University of Louisville last fall that political partisanship does not play a role in decision-making on the court. “Judicial philosophies are not the same as political parties,” she said.

Justice Steven Breyer, 83, who was nominated to the court by President Bill Clinton, and whose impending retirement under another Democrat, President Biden, paved the way for Judge Jackson’s nomination, also argued in a book last year that any differences among the justices were jurisprudential, not political. But that didn’t stop liberal Democrats from urging him to retire.

Likewise, in the aftermath of Justice Ginsburg’s death, many Democrats were sharply critical of her decision not to retire before Donald Trump was elected president. That would most likely have avoided the appointment of a conservative like Justice Barrett. Like Justice Breyer, Justice Ginsburg was also nominated by Mr. Clinton.

The idea that the justices are above politics is, of course, crucial to maintaining the veneer of impartiality that is the foundation of the court’s legitimacy. That gloss appears increasingly tarnished. A recent survey by the Pew Research Center, completed before Justice Breyer announced his retirement, found that over the past three years, the share of Americans with a favorable view of the court has declined 15 percentage points, reflecting broad skepticism of the idea that the justices are not influenced by politics.

Numerous studies have found, perhaps unsurprisingly, that decisions by judges vary according to their gender, race, ethnicity and, notably, their party affiliation. One study published in 2006, for instance, analyzed thousands of judicial decisions and “found striking evidence of a relationship between the political party of the appointing president and judicial voting patterns.”

Still, one might still say that judges are doing their best to be impartial and politically independent, and that these biases are simply reflective of unconscious dynamics, differences in philosophy or moral principle.

But retirement or resignation is typically a very carefully considered decision; it also carries substantial political consequences by conferring on the president the opportunity to select the replacement.

A past survey of active and retired federal judges asked them to report the degree of importance they attached to the party of the president in power when deciding when to retire. Nearly all judges reported that they did not consider this as a factor in the timing of their retirement. A study published in 2006 concluded that judicial retirement patterns had to do with pension eligibility and that “By comparison, political and institutional factors appear to have little influence on turnover rates.”

In our study, a working paper on the role politics might play in retirements and resignations, we considered not just whether judges retired the year before or after an election, as other researchers had done, but also whether they retired in the first quarter before or after an election.

Using data from 1802 to 2019, we examined whether judges’ resignations and retirements corresponded with electoral cycles. Between 1802 and 1975, we found that relative to the regular distribution of departures from the bench over time, an additional 6 percent of all judicial exits coincided with electoral cycles and appear to have been politically motivated. In other words, the political affiliations of the exiting judges, measured by the party of the president who appointed them, were the same as the sitting president’s.

We saw a significant uptick in what appear to be politically motivated retirements since the 1970s — a historical inflection point coincident with Roe v. Wade and the ascent of right-wing evangelical politics — that has continued to intensify. Of 273 federal judicial retirements between 1976 and 2019, 14.7 percent, representing 40 lifelong appointments, deviated from the regular pattern of retirements in a way that ensured that the retiring judge’s replacement would be nominated by a president who shared the judge’s party affiliation. Such retirements are seen across both political parties, with Republican-affiliated judges slightly more likely to indulge in this partisan behavior.

Politically motivated departures from the bench are both a symptom and a cause of the increasing polarization of the courts, and there is no reason to believe this feedback loop can be changed without some mechanism to force it. Term limits for Supreme Court justices and federal judges, widely used around the world, would help counter the evaporating legitimacy of the courts. So too would staggering retirements randomly rather than leaving them up to judicial discretion. And proposals to increase the number of justices on the Supreme Court as a corrective to its politically engineered rightward drift should not be dismissed as radical.

It is vital that lawmakers and judges acknowledge that instituting substantial changes to the Supreme Court and the broader judiciary is not a threat to the integrity of American law. It is instead an essential step toward counteracting its accelerating demise and protecting the ideal of democracy it claims to support."

[cradleandshoot]

Article on the Court:

https://www.nytimes.com/2022/04/14/opin ... ckson.html

"The increasingly bitter partisan battles over Supreme Court nominations reflect the degree of influence that a single court of nine unelected judges exercises over life in America. As Ketanji Brown Jackson’s confirmation hearing underscored, the role partisan politics plays on the court is an issue that is not going away.

Supreme Court justices and most other judges insist that politics do not enter into their work. But there is a straightforward metric available that reveals what appears to be a calculated political motivation in judicial decision-making: the timing of judges’ retirements. And increasingly, federal judges have been calibrating their retirements so that their successors will be nominated by a president of the same party who nominated them. Given the lifetime tenure of federal judges, this pattern has long-term ramifications for the courts.

When asked, many judges say politics is not a reference point for them. Amy Coney Barrett, who took her seat on the Supreme Court in the fall of 2020 following the death of Justice Ruth Bader Ginsburg, told students at the University of Louisville last fall that political partisanship does not play a role in decision-making on the court. “Judicial philosophies are not the same as political parties,” she said.

Justice Steven Breyer, 83, who was nominated to the court by President Bill Clinton, and whose impending retirement under another Democrat, President Biden, paved the way for Judge Jackson’s nomination, also argued in a book last year that any differences among the justices were jurisprudential, not political. But that didn’t stop liberal Democrats from urging him to retire.

Likewise, in the aftermath of Justice Ginsburg’s death, many Democrats were sharply critical of her decision not to retire before Donald Trump was elected president. That would most likely have avoided the appointment of a conservative like Justice Barrett. Like Justice Breyer, Justice Ginsburg was also nominated by Mr. Clinton.

The idea that the justices are above politics is, of course, crucial to maintaining the veneer of impartiality that is the foundation of the court’s legitimacy. That gloss appears increasingly tarnished. A recent survey by the Pew Research Center, completed before Justice Breyer announced his retirement, found that over the past three years, the share of Americans with a favorable view of the court has declined 15 percentage points, reflecting broad skepticism of the idea that the justices are not influenced by politics.

Numerous studies have found, perhaps unsurprisingly, that decisions by judges vary according to their gender, race, ethnicity and, notably, their party affiliation. One study published in 2006, for instance, analyzed thousands of judicial decisions and “found striking evidence of a relationship between the political party of the appointing president and judicial voting patterns.”

Still, one might still say that judges are doing their best to be impartial and politically independent, and that these biases are simply reflective of unconscious dynamics, differences in philosophy or moral principle.

But retirement or resignation is typically a very carefully considered decision; it also carries substantial political consequences by conferring on the president the opportunity to select the replacement.

A past survey of active and retired federal judges asked them to report the degree of importance they attached to the party of the president in power when deciding when to retire. Nearly all judges reported that they did not consider this as a factor in the timing of their retirement. A study published in 2006 concluded that judicial retirement patterns had to do with pension eligibility and that “By comparison, political and institutional factors appear to have little influence on turnover rates.”

In our study, a working paper on the role politics might play in retirements and resignations, we considered not just whether judges retired the year before or after an election, as other researchers had done, but also whether they retired in the first quarter before or after an election.

Using data from 1802 to 2019, we examined whether judges’ resignations and retirements corresponded with electoral cycles. Between 1802 and 1975, we found that relative to the regular distribution of departures from the bench over time, an additional 6 percent of all judicial exits coincided with electoral cycles and appear to have been politically motivated. In other words, the political affiliations of the exiting judges, measured by the party of the president who appointed them, were the same as the sitting president’s.

We saw a significant uptick in what appear to be politically motivated retirements since the 1970s — a historical inflection point coincident with Roe v. Wade and the ascent of right-wing evangelical politics — that has continued to intensify. Of 273 federal judicial retirements between 1976 and 2019, 14.7 percent, representing 40 lifelong appointments, deviated from the regular pattern of retirements in a way that ensured that the retiring judge’s replacement would be nominated by a president who shared the judge’s party affiliation. Such retirements are seen across both political parties, with Republican-affiliated judges slightly more likely to indulge in this partisan behavior.

Politically motivated departures from the bench are both a symptom and a cause of the increasing polarization of the courts, and there is no reason to believe this feedback loop can be changed without some mechanism to force it. Term limits for Supreme Court justices and federal judges, widely used around the world, would help counter the evaporating legitimacy of the courts. So too would staggering retirements randomly rather than leaving them up to judicial discretion. And proposals to increase the number of justices on the Supreme Court as a corrective to its politically engineered rightward drift should not be dismissed as radical.

It is vital that lawmakers and judges acknowledge that instituting substantial changes to the Supreme Court and the broader judiciary is not a threat to the integrity of American law. It is instead an essential step toward counteracting its accelerating demise and protecting the ideal of democracy it claims to support."

+1 Mr Coaster. Very good article, I enjoyed reading it. I have one question, what do those " substantial changes" to the court look like? Who would be in charge of making those changes?

[dislaxxic]

Alarming (well, maybe not thanks to Orange Cheeto's New Morality...)

Has Ron DeSantis Been Chatting With Clarence Thomas About Redistricting? [TPM Firewall]

Wednesday’s news of Gov. Ron DeSantis’ proposed congressional maps — which are heavily slanted in Republicans’ favor and likely to be approved by the GOP-controlled legislature — raised an interesting question.

Have the governor and Justice Clarence Thomas been in touch? And if so, what about?

After all, emails revealed in February — from Thomas’ wife Ginni Thomas to DeSantis’ scheduling office in June last year — seem to indicate as much.

“[M]y husband has been in contact with him too on various things of late,” Ginni Thomas wrote then, requesting the governor’s presence at an event she was organizing.

Then, last month, NBC News quoted an unnamed Republican source who added a data point: “The source said DeSantis is in regular email contact with U.S. Supreme Court Justice Clarence Thomas, a leading opponent of racial set-asides, which the conservative-leaning court has scaled back in recent years,” journalist Marc Caputo reported.

DeSantis’ office hasn’t replied to TPM’s request for comment, but the governor seems eager for a legal fight over his districts.

“You look at what’s happened in the U.S. Supreme Court over the last four or five years,” DeSantis said Tuesday, hinting at the court’s conservative turn with the addition of three Trump-appointed justices, and how it’s decided voting rights and gerrymandering cases in recent years. A series of recent Supreme Court rulings have taken aim at the Voting Rights Act and scaled back the tools advocates for voting rights have at their disposal when challenging gerrymanders and restrictive voting laws.

It all raises the question: Are Justice Thomas and DeSantis actually in touch, as Ginni Thomas claimed? And if so, did they discuss Florida’s impending gerrymandering fight?

At the time Ginni Thomas mentioned DeSantis and Justice Thomas’ contact about “various things of late,” on June 10, 2021, the impending redistricting fight was certainly in the air: In April of that year, U.S. Census figures showed that Florida’s population had grown enough to earn a 28th congressional district.

The following month, on May 6, DeSantis signed a now-infamous voter suppression package, SB 90, during a Fox News appearance. (A federal judge recently struck down parts of that law in a lengthy ruling that focused on Florida’s history of racist voter suppression. The state has said it will appeal to the ruling.)

Also in May, articles in Politico and Axios flagged the arrival of a new Florida-focused, conservative redistricting group, “Democracy Now,” led by the former Trump administration official (and, before that, Florida legislator) Carlos Trujillo.

Noting that the Florida Supreme Court had “turned over” in the previous decade — DeSantis has appointed three judges — Trujillo told Axios, “our hope is the maps that are presented — as long as they’re in compliance with the state constitution and the federal Voting Rights Act — should be ratified by a nonactivist Florida Supreme Court.”

DeSantis Clearly Wants A Legal Fight
Obviously, none of this confirms what Thomas and DeSantis discussed, if, in fact, they’ve spoken at all. Still, Florida’s governor has been eager for a legal fight over his proposed congressional maps, which would likely give Florida Republicans 20 congressional districts to Democrats’ eight, a dramatic shift from the 16-11 status quo.

“I think our dispute very well may lead to saying that Florida’s redistricting amendments are not consistent with the 14th Amendment’s equal protection clause,” DeSantis said in March. (The redistricting amendments in question, approved overwhelmingly by Florida voters in 2010, were intended to prohibit overly partisan gerrymandering.)

“It is designed to potentially lead to a legal challenge of Florida’s redistricting amendments,” DeSantis said of his then-proposed map, Florida Politics reported. (Their coverage has been great in general.)

He added: “I think if you look at how those amendments are crafted, some of the case law that came in the middle of the last decade — which is what … the Legislature followed and I understand why they did that — it’s our view that if you honestly take that text history and stricture seriously, that that’s much broader than what would be countenanced under the 14th Amendment.”

Later, while vetoing a map from the legislature, DeSantis flagged his desire for the fight to go to the federal courts: “[In] their I-guess-understandable zeal to try and comply with what they believe the Florida Constitution requires, they forgot to make sure what they were doing complied with the 14th Amendment of the U.S. Constitution,” he said.

Amid the scuffle between legislature Republicans and the governor, Florida House Speaker Chris Sprowls referred to DeSantis’ idea as a “novel legal theory.” Now, the legislature is apparently being led by DeSantis into a court battle that will test that theory.

..

[ggait]

+1 Mr Coaster. Very good article, I enjoyed reading it. I have one question, what do those " substantial changes" to the court look like? Who would be in charge of making those changes?

I've been advocating for 18 year terms limits for SCOTUS for a long time. That reform is long overdue. It has gotten ridiculous. By the time B-Kav retires, his seat will have been in GOP hands for 75 straight years (Powell 72-87; Kennedy 88-18; Kav 18-48). The concept of life tenure is supposed to make judges above politics. But on SCOTUS, life tenure now is the mechanism used to hand down SCOTUS seats like they were partisan inherited estates.

All it would take is an act of Congress. While the Constitution provides life tenure for federal judges (as federal judges), there is no lifetime guarantee for a SCOTUS justice to remain on SCOTUS for life.

The overall idea is that 18 years is long enough to give judges independence, but a fixed term would eliminate the BS of partisan-timed retirements. Every 4 year presidential term would come with two SCOTUS appointments in the normal course. One in year 1; another in year 3. So the Court would (over the decades) stay connected to the overall middle ground of USA politics -- i.e. elections have consequences. Rather than being gamed (as it now is) to reflect a skewed version of America.

Two problems.

First, you would never get the GOP to vote for this. Even though the idea came from real conservatives initially. And now has bi-partisan support (Roberts and Breyer are both in favor).

Second, how do you get an opposite party controlled Senate to confirm a nominee from an opposite party president? The Dems have done that at times (Thomas, Souter, Kennedy). The GOP hasn't done that since the 1890s.

If everyone opposite party nominee gets Garland-ed, term limits won't work as intended.

[Typical Lax Dad]

Article on the Court:

https://www.nytimes.com/2022/04/14/opin ... ckson.html

"The increasingly bitter partisan battles over Supreme Court nominations reflect the degree of influence that a single court of nine unelected judges exercises over life in America. As Ketanji Brown Jackson’s confirmation hearing underscored, the role partisan politics plays on the court is an issue that is not going away.

Supreme Court justices and most other judges insist that politics do not enter into their work. But there is a straightforward metric available that reveals what appears to be a calculated political motivation in judicial decision-making: the timing of judges’ retirements. And increasingly, federal judges have been calibrating their retirements so that their successors will be nominated by a president of the same party who nominated them. Given the lifetime tenure of federal judges, this pattern has long-term ramifications for the courts.

When asked, many judges say politics is not a reference point for them. Amy Coney Barrett, who took her seat on the Supreme Court in the fall of 2020 following the death of Justice Ruth Bader Ginsburg, told students at the University of Louisville last fall that political partisanship does not play a role in decision-making on the court. “Judicial philosophies are not the same as political parties,” she said.

Justice Steven Breyer, 83, who was nominated to the court by President Bill Clinton, and whose impending retirement under another Democrat, President Biden, paved the way for Judge Jackson’s nomination, also argued in a book last year that any differences among the justices were jurisprudential, not political. But that didn’t stop liberal Democrats from urging him to retire.

Likewise, in the aftermath of Justice Ginsburg’s death, many Democrats were sharply critical of her decision not to retire before Donald Trump was elected president. That would most likely have avoided the appointment of a conservative like Justice Barrett. Like Justice Breyer, Justice Ginsburg was also nominated by Mr. Clinton.

The idea that the justices are above politics is, of course, crucial to maintaining the veneer of impartiality that is the foundation of the court’s legitimacy. That gloss appears increasingly tarnished. A recent survey by the Pew Research Center, completed before Justice Breyer announced his retirement, found that over the past three years, the share of Americans with a favorable view of the court has declined 15 percentage points, reflecting broad skepticism of the idea that the justices are not influenced by politics.

Numerous studies have found, perhaps unsurprisingly, that decisions by judges vary according to their gender, race, ethnicity and, notably, their party affiliation. One study published in 2006, for instance, analyzed thousands of judicial decisions and “found striking evidence of a relationship between the political party of the appointing president and judicial voting patterns.”

Still, one might still say that judges are doing their best to be impartial and politically independent, and that these biases are simply reflective of unconscious dynamics, differences in philosophy or moral principle.

But retirement or resignation is typically a very carefully considered decision; it also carries substantial political consequences by conferring on the president the opportunity to select the replacement.

A past survey of active and retired federal judges asked them to report the degree of importance they attached to the party of the president in power when deciding when to retire. Nearly all judges reported that they did not consider this as a factor in the timing of their retirement. A study published in 2006 concluded that judicial retirement patterns had to do with pension eligibility and that “By comparison, political and institutional factors appear to have little influence on turnover rates.”

In our study, a working paper on the role politics might play in retirements and resignations, we considered not just whether judges retired the year before or after an election, as other researchers had done, but also whether they retired in the first quarter before or after an election.

Using data from 1802 to 2019, we examined whether judges’ resignations and retirements corresponded with electoral cycles. Between 1802 and 1975, we found that relative to the regular distribution of departures from the bench over time, an additional 6 percent of all judicial exits coincided with electoral cycles and appear to have been politically motivated. In other words, the political affiliations of the exiting judges, measured by the party of the president who appointed them, were the same as the sitting president’s.

We saw a significant uptick in what appear to be politically motivated retirements since the 1970s — a historical inflection point coincident with Roe v. Wade and the ascent of right-wing evangelical politics — that has continued to intensify. Of 273 federal judicial retirements between 1976 and 2019, 14.7 percent, representing 40 lifelong appointments, deviated from the regular pattern of retirements in a way that ensured that the retiring judge’s replacement would be nominated by a president who shared the judge’s party affiliation. Such retirements are seen across both political parties, with Republican-affiliated judges slightly more likely to indulge in this partisan behavior.

Politically motivated departures from the bench are both a symptom and a cause of the increasing polarization of the courts, and there is no reason to believe this feedback loop can be changed without some mechanism to force it. Term limits for Supreme Court justices and federal judges, widely used around the world, would help counter the evaporating legitimacy of the courts. So too would staggering retirements randomly rather than leaving them up to judicial discretion. And proposals to increase the number of justices on the Supreme Court as a corrective to its politically engineered rightward drift should not be dismissed as radical.

It is vital that lawmakers and judges acknowledge that instituting substantial changes to the Supreme Court and the broader judiciary is not a threat to the integrity of American law. It is instead an essential step toward counteracting its accelerating demise and protecting the ideal of democracy it claims to support."

+1 Mr Coaster. Very good article, I enjoyed reading it. I have one question, what do those " substantial changes" to the court look like? Who would be in charge of making those changes?

Al Sharpton

[dislaxxic]

A Racist Juror Helped Send a Black Man to Death Row. Why Doesn’t SCOTUS Care?

"Another 6–3 decision illustrates how the conservative majority can change the law by doing nothing."

Conservative activist court rears its VERY UGLY HEAD AGAIN. This is the result of not fighting this BS hard enough at the polls...and as these idiotic ideological travesties continue to pile up, maybe the country will WAKE UP to the danger of a far-right SCOTUS...

Under precedents like Peña-Rodriguez, Love’s appeal should have presented an easy case. At a minimum, Sotomayor wrote, the lower court should have “meaningfully reviewed Love’s allegations of racial bias” rather than shrugging it off. But the Supreme Court has shifted far to the right over the last five years. It is apparent that six justices do not much care for precedents protecting criminal defendants from racist jurors, particularly in capital cases. After all, these same justices paved the way for the Trump administration’s eleventh hour execution spree .

To ensure that Donald Trump could execute as many people as possible before Joe Biden entered office, the conservative majority ignored or flouted federal law, often breaking the court’s own rules in the process. They are certain that death row lawyers are using guerilla tactics to delay executions, and increasingly willing to rewrite law on the fly in a bid to thwart them.

What is the easiest way to rewrite the law? Simply stop enforcing it. That’s what the Texas Court of Criminal Appeals did in swatting down Love’s claim, and it’s what SCOTUS did on Monday by blessing the lower court’s defiance of precedent. Overturning past rulings requires reasoning and fortitude. It’s much easier to let precedent die without saying a word.

..

[Farfromgeneva]

Article on the Court:

https://www.nytimes.com/2022/04/14/opin ... ckson.html

"The increasingly bitter partisan battles over Supreme Court nominations reflect the degree of influence that a single court of nine unelected judges exercises over life in America. As Ketanji Brown Jackson’s confirmation hearing underscored, the role partisan politics plays on the court is an issue that is not going away.

Supreme Court justices and most other judges insist that politics do not enter into their work. But there is a straightforward metric available that reveals what appears to be a calculated political motivation in judicial decision-making: the timing of judges’ retirements. And increasingly, federal judges have been calibrating their retirements so that their successors will be nominated by a president of the same party who nominated them. Given the lifetime tenure of federal judges, this pattern has long-term ramifications for the courts.

When asked, many judges say politics is not a reference point for them. Amy Coney Barrett, who took her seat on the Supreme Court in the fall of 2020 following the death of Justice Ruth Bader Ginsburg, told students at the University of Louisville last fall that political partisanship does not play a role in decision-making on the court. “Judicial philosophies are not the same as political parties,” she said.

Justice Steven Breyer, 83, who was nominated to the court by President Bill Clinton, and whose impending retirement under another Democrat, President Biden, paved the way for Judge Jackson’s nomination, also argued in a book last year that any differences among the justices were jurisprudential, not political. But that didn’t stop liberal Democrats from urging him to retire.

Likewise, in the aftermath of Justice Ginsburg’s death, many Democrats were sharply critical of her decision not to retire before Donald Trump was elected president. That would most likely have avoided the appointment of a conservative like Justice Barrett. Like Justice Breyer, Justice Ginsburg was also nominated by Mr. Clinton.

The idea that the justices are above politics is, of course, crucial to maintaining the veneer of impartiality that is the foundation of the court’s legitimacy. That gloss appears increasingly tarnished. A recent survey by the Pew Research Center, completed before Justice Breyer announced his retirement, found that over the past three years, the share of Americans with a favorable view of the court has declined 15 percentage points, reflecting broad skepticism of the idea that the justices are not influenced by politics.

Numerous studies have found, perhaps unsurprisingly, that decisions by judges vary according to their gender, race, ethnicity and, notably, their party affiliation. One study published in 2006, for instance, analyzed thousands of judicial decisions and “found striking evidence of a relationship between the political party of the appointing president and judicial voting patterns.”

Still, one might still say that judges are doing their best to be impartial and politically independent, and that these biases are simply reflective of unconscious dynamics, differences in philosophy or moral principle.

But retirement or resignation is typically a very carefully considered decision; it also carries substantial political consequences by conferring on the president the opportunity to select the replacement.

A past survey of active and retired federal judges asked them to report the degree of importance they attached to the party of the president in power when deciding when to retire. Nearly all judges reported that they did not consider this as a factor in the timing of their retirement. A study published in 2006 concluded that judicial retirement patterns had to do with pension eligibility and that “By comparison, political and institutional factors appear to have little influence on turnover rates.”

In our study, a working paper on the role politics might play in retirements and resignations, we considered not just whether judges retired the year before or after an election, as other researchers had done, but also whether they retired in the first quarter before or after an election.

Using data from 1802 to 2019, we examined whether judges’ resignations and retirements corresponded with electoral cycles. Between 1802 and 1975, we found that relative to the regular distribution of departures from the bench over time, an additional 6 percent of all judicial exits coincided with electoral cycles and appear to have been politically motivated. In other words, the political affiliations of the exiting judges, measured by the party of the president who appointed them, were the same as the sitting president’s.

We saw a significant uptick in what appear to be politically motivated retirements since the 1970s — a historical inflection point coincident with Roe v. Wade and the ascent of right-wing evangelical politics — that has continued to intensify. Of 273 federal judicial retirements between 1976 and 2019, 14.7 percent, representing 40 lifelong appointments, deviated from the regular pattern of retirements in a way that ensured that the retiring judge’s replacement would be nominated by a president who shared the judge’s party affiliation. Such retirements are seen across both political parties, with Republican-affiliated judges slightly more likely to indulge in this partisan behavior.

Politically motivated departures from the bench are both a symptom and a cause of the increasing polarization of the courts, and there is no reason to believe this feedback loop can be changed without some mechanism to force it. Term limits for Supreme Court justices and federal judges, widely used around the world, would help counter the evaporating legitimacy of the courts. So too would staggering retirements randomly rather than leaving them up to judicial discretion. And proposals to increase the number of justices on the Supreme Court as a corrective to its politically engineered rightward drift should not be dismissed as radical.

It is vital that lawmakers and judges acknowledge that instituting substantial changes to the Supreme Court and the broader judiciary is not a threat to the integrity of American law. It is instead an essential step toward counteracting its accelerating demise and protecting the ideal of democracy it claims to support."

+1 Mr Coaster. Very good article, I enjoyed reading it. I have one question, what do those " substantial changes" to the court look like? Who would be in charge of making those changes?

Al Sharpton

I was going to go with Bobby Seale