Made in the Shade

Briefs. Oral arguments. Questions and answers analyzed by experts and an interested public. This is how we’ve long experienced major, often nation-altering Supreme Court cases. But something changed just after 6 p.m. on a February evening in 2016. The Court was considering one of those big, impactful cases, in which they would decide whether to block or allow President Barack Obama’s Clean Power Plan. You probably didn’t read any of the submitted briefs or hear any of the oral arguments. Because there were none. But that doesn’t mean the case wasn’t decided. America was caught with its briefs down, as the Roberts Court halted the environmental plan. “They acted before any other court had addressed the plan’s lawfulness. The decision consisted of only legal boilerplate, without a word of reasoning. At the time, the ruling seemed like a curious one-off. But that single paragraph turned out to be a sharp and lasting break. That night marks the birth, many legal experts believe, of the court’s modern ‘shadow docket,’ the secretive track that the Supreme Court has since used to make many major decisions, including granting President Trump more than 20 key victories on issues from immigration to agency power.” The adage suggests that what you don’t know can’t hurt you. That, like so many of the cases that are now decided in secret and rendered with no explanation, seems like a notion worthy of a public hearing. The NYT (Gift Article): The Inside Story of Five Days That Remade the Supreme Court. “Rulings with no explanation or reasoning, like the sparse paragraph from that February night, have become routine. The emergency docket is now a central legacy of the court led by Chief Justice Roberts.” How dramatically will that legacy change our legal system and our country? Only the Shadow knows.

+ Steve Vladek wrote a highly regarded book on this topic: The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.