Seacoaster(1) wrote: ↑Thu Apr 07, 2022 12:44 pm
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.
Her addition to the court changes NADA so they could have been magnanimous but nope. 