Official circles in Washington and legal academy circles are deep in an intense new debate about the legitimacy of the U.S. Supreme Court. That is not a new topic, but it was prompted by the spectacular public disclosure, by The New York Times, of previously secret memos written by some of the Justices in a major environmental policy case ten years ago.
This was a historic journalistic coup, penetrating deep behind the scenes at the Court in a way that is seldom done. The two reporters involved did not reveal how they did it, of course, but there is no doubt that the 16 documents they revealed are authentic.
The lengthy account in The Times last week treats these memos as the documentary origin of an approach to judging legal questions that reach the Court on an emergency basis, and are decided on what is now known informally as the Court’s “shadow docket.”
That is a label given by a University of Chicago law professor to the Court’s practice of deciding emergency legal questions in haste and without following the elaborate – and often laborious – process of summoning lengthy legal briefs, holding full public hearings, debating internally for weeks or months, and then issuing final decisions in fully examined detail.
Disputes decided without that serious focus, it is said, are resolved in the shadows, among the Justices and their clerks, without explaining to the public what has happened or what the outcomes actually mean.
The main reason that this is treated as illegitimate is because the Court has, for all of its two-century-plus existence, justified its independence by reporting to the nation’s people why the Justices decide as they do. Since impeachment is the only constitutional way to hold the Justices directly accountable, and since that rarely occurs, the Court’s work is its only report card.
Aside from the issue of accountability, unexplained orders in “shadow docket” cases are also a problem because lower courts have no way of knowing how – or whether — to apply what is done that way. And that problem is made significantly worse when the Court, as it now sometimes does, treats “shadow docket” orders as if they were precedent-setting when, in law, they are formally not binding at all.
The Court has had the authority, throughout its existence, to take temporary action to put a lower-court ruling on hold in order to maintain the status quo until a question can be fully explored in the normal fashion. Usually, that is not intended to declare how the Court itself will rule in a final way on the issue in the future, but it can be at least a hint about that.
What is new about the “shadow docket,” and The Times’ account last week makes this very clear, is that the Justices now feel free not to just block lower-court actions, but to directly issue orders blocking government agency action even while that action is under review but not yet decided in lower courts. In a manner of speaking, the Court is seen as acting out of turn, not standing by until it is the last resort. It is the hallmark of an activist tribunal, impatient to have its say.
What was at stake in February 2016, a time when the Justices wrote the memos made public by The Times, was whether the Court would reach out to block an Obama Administration policy that would restrict the emission of global-warming gases from utility power plants. The documents show that Chief Justice John Roberts personally led an urgent effort to stop the policy even without waiting for review by a lower court. His effort was mildly resisted by some Justices, but he prevailed on a 5-to-4 vote; the one-paragraph order blocking the policy contained no explanation. Up to then, there was no precedent in the Court’s history for an order of that kind.
The documents clearly suggest that Roberts had made his own personal assessment that the Obama plan would be too expensive for the power plants and also was acting out of his own fear that the Obama Administration was trying to make an end-run around the Court, before it could act. Tellingly, the documents show none of the Justices showing any concern that the Obama plan might have been truly beneficial to the nation’s climate.
In the ten years since, the Court has issued many orders of that kind on the “shadow docket,” and the history of the practice echoes what happened in 2016: such unexplained orders often have brought about conservative results, leading to deepening complaint by the Court’s liberal Justices.
In the 16 months of the second term of President Trump, the Court majority has decisively advanced that Administration’s controversial initiatives. That, of course, is just the opposite of what happened ten years ago, when what was involved was an initiative by President Obama that the Court majority thwarted. Similarly, that majority used the “shadow docket” to head off several key policies adopted by President Biden.
Whether or not the “shadow docket” is, in fact, illegitimate is much debated these days, and there is no consensus on what, if anything, should be done about it. There are critics who have suggested that Congress has the power to step in and stop the practice.
Under the Constitution’s Article III, creating the federal courts, Congress does have the authority to pass laws to shape the Court’s jurisdiction – that is, the cases it can decide and at least some of its process for reviewing them – but that has seldom been used, and any serious effort now to control the current Court’s decision-making very likely would be firmly resisted by the Court if it sensed a serious threat to its independence.
A constitutional conflict just that serious did arise, early in the life of the Constitution, leading to what is widely recognized as the most famous decision the Court has ever issued: its 1803 ruling in Marbury v. Madison. In an opinion by Chief Justice John Marshall, the Court conceded that Congress could pass laws to regulate some of the Court’s work, but then kept for the courts the ultimate authority to decide what the Constitution means and whether the other branches of the government had obeyed the Constitution.
Critics of the current Court have also been searching for ways to curtail or even to overturn another approach adopted by the tribunal under Chief Justice Roberts. That is a technique for deciding when agencies of the federal government – those in the Executive Branch or at least technically independent – exercise their power in handling policy that has “vast economic and political significance,” as the Court described it for the first time in a decision four years ago.
It is known as the “major questions doctrine.” What it has meant is that, if a government agency adopts a policy of wide impact but does so without explicit permission from Congress, that policy will be nullified as a violation of the doctrine of “separation of powers.” Such initiatives are treated as interfering with Congress’s constitutional power to legislate.
The “major questions doctrine” has some philosophical antecedents in decisions the Court made in the 1980s, but the Roberts Court has brought it into full form and has used it in striking down some of the bolder initiatives of the Biden Administration, including environmental policy and health care programs.
The doctrine is a modern adaptation of an approach that the Court used repeatedly in the 1930s in striking down several of the major Great Depression programs of President Franklin Roosevelt’s “New Deal.” Then, it was labeled the “non-delegation doctrine,” meaning unconstitutional use of legislative power by the Executive Branch. The Court last explicitly used the doctrine in that form in 1935.
Among the conservative Justices now on the Court, Justice Clarence Thomas has been the most committed to a process of sharply narrowing the powers of government agencies, and he has gained new followers among his colleagues in recent years.
There is much talk in official Washington these days that Justice Thomas and his conservative colleague, Justice Samuel A. Alito, Jr., may decide to retire from the Court this summer, to assure that President Trump could name replacements before the November elections. The rising prospect that the Democrats may do very well in those elections seems to be fueling the speculation about Thomas and Alito. Trump would almost certainly pick new Justices whom he would expect to be as conservatives as those two.
