The shadow docket

This is Joseph.

I think that this is a very big deal:

Chief Justice Roberts voted with Justices Breyer, Sotomayor and Kagan in dissenting from six previous shadow docket rulings. But the Clean Water Act dispute was the first time he joined in the procedural criticism that the other conservatives were not just using the shadow docket but abusing it. In that respect, his rebuke cannot be dismissed as partisan. By publicly endorsing the charge that the conservative justices are short-circuiting ordinary procedures to reach their desired results without sufficient explanation, Chief Justice Roberts provided a powerful counter to defenders of the court’s behavior. Justice Samuel Alito, for instance, claimed in a September 2021 speech that critics of these rulings are acting in bad faith because their real objections are to the results in these cases.

What is especially telling about Chief Justice Roberts’s dissents in these shadow docket cases is that, unlike Justices Breyer, Sotomayor and Kagan, he’s often been sympathetic to the results. In February’s Alabama redistricting ruling, for instance, Chief Justice Roberts agreed that the court should reconsider the interpretation of the Voting Rights Act under which Alabama’s maps had been struck down; he just believed that any change in that interpretation had to come through the merits docket, not the shadow docket.

Courts have to survive on credibility and this sort of aggressive intervention is just the opposite of that. It is a change in how SCOTUS typically operates (it has been >200 years, I am sure other bad decisions abound) and it has a pretty big impact on the ability of people to predict the rule of law.

One of the classic libertarian views that I thought was a very good point was that a strong and predictable set of laws has actual market value. Business likes a lack of political and legal uncertainty as it makes it easier to run a profitable business. Mark Palko has already talked about another example of this with Disney and Florida, but that is only one state. Plus, if SCOTUS is operating well then it is likely that any such measure might run into trouble upon appeal. 

Now there is a lot of ruin in a court, to follow the wisdom of Adam Smith. But this seems to be an unforced error of shredding credibility. Elections have consequences and I was sure not all that excited by some government policies. But the ability for government to govern is a key piece of democratic rule, even if we think that the rules are sub-optimal. 

Like a lot of bad ideas, no one ruling is too much and mistakes/miscalculations are a part of a vibrant and living court system. But like things like presidential pardons, what can be an important tool for complicated situations can start being a problem if widely over-used.