Courts

The Shadow Docket Has Gotten So Bad, Even John Roberts Is Pissed About It

Basically the majority said, 'I do what I want!'

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John Roberts Confirmation Hearings Continue For A Third Day

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The Supreme Court has gotten out of hand, y’all. The shadow docket is eroding rights and precedent at an absurd rate. Justices are out there lying about the overly political role of the Court, and SCOTUS is in the midst of a crisis of credibility.

Just the other day, Amy Coney Barrett disingenuously told an audience to read the Court’s principled decisions — which my colleague Joe Patrice rightly termed brazen gaslighting. She followed that with a remarkable twist of the ironic knife by joining the majority in Louisiana v. American Rivers — and no, you cannot just “read the opinion” because, um, there isn’t one.

The shadow docket decision reinstated a Trump-era rule in which the EPA changed 50 years of established doctrine under the Clean Water Act. Pre-Trump, states’ and tribes’ had authority under the Act to grant, modify, or deny certification of an energy project if it was potentially destructive. Trump’s EPA significantly reduced that authority. Now Biden wants to “reconsider and revise” the rule, in a case winding its way through federal courts (a district court found the agency can do that). But even before the appellate court has issued a decision, a group of red states and trade groups asked the Supreme Court to set aside a district court ruling unwinding the Trump-era rule. And five justices agreed to do just that — without a lick of explanation.

But this shadow docket nonsense has really pissed off Elena Kagan, in what Mark Joseph Stern at Slate calls a “bewildered dissent.”

Kagan pointed out that, by law, the Supreme Court can issue this kind of stay “in extraordinary circumstances,” when there is “an exceptional need for immediate relief,” including evidence of “irreparable harm.” Here, the Trump rule’s defenders insisted that states were obstructing vital energy projects. But, Kagan wrote, they “have not identified a single project that a state has obstructed” under the district court’s decision or “cited a single project that the court’s ruling threatens.” Put simply, they failed to explain how returning to the pre-Trump regime—“which existed for 50 years”—would hurt them at all.

Then Kagan spelled out what the majority is really doing here: Using the shadow docket to restore the Trump administration’s stranglehold on the Clean Water Act. “That renders the Court’s emergency docket not for emergencies at all,” she concluded. “The docket becomes only another place for merits determinations—except made without full briefing and argument.”

But what’s super notable is who joined Kagan’s dissent. Justices Stephen Breyer and Sonia Sotomayor were expected, but Chief Justice John Roberts is also on board:

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It is remarkable that Roberts, who has joined several shadow docket decisions with no apparent basis in the law, signed onto Kagan’s dissent. And his support was likely quite important to Kagan. Her opinion seems tailor-made to secure Roberts’ vote, zeroing in on the most egregious procedural aspect of the majority’s decision while excluding the harsher rhetoric from previous dissents. (She even avoided using the term “shadow docket,” which the conservatives regard as a slur.) Roberts is a longtime foe of the Clean Water Act, and he might even agree with the majority on the merits. But here, as in February’s shadow docket order neutering the Voting Rights Act, the chief justice drew the line at outright lawlessness. Roberts may eventually vote to gut both the Clean Water Act and the Voting Rights Act in these cases. But unlike his conservative colleagues, he is unwilling to break the court’s own rules to do so.

But as nice as it is that Roberts rejects this assault on the Court’s procedures, it doesn’t matter. There are five justices that have proven they’re willing to do whatever it takes to get the policy result they support.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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