SCOTUS Is Making New Law in the Shadows
April 15th, New York Times “Friday night’s injunction was at the 20th time since the court’s term began last October the justices have issued a shadow docket ruling altering the status quo.
Which brings to question, the more substantive the work the justices carry out through such unusual, unsigned, and unexplained orders; the more a “shadow docket” raises concerns about the court’s decision making transparency.
It leaves to questioning the underlying legitimacy of the high court decisions.
Recent years have seen a significant uptick in the volume of “shadow docket” rulings that are resolving matters beyond a singular issue and the issuing of orders changing the effect of lower-court rulings while they are appealed.
The most recent the Robert’s Court has taken up is California’s Covid-based restrictions on in-home gatherings to members of no more than three different households. The plaintiffs, who regularly hold Bible studies and prayer meetings in their homes, challenged the restrictions on the ground that they interfered with their right to the free exercise of religion as guaranteed by the First Amendment.
The Robert’s Court in what one scholar called the SCOTUS “most important free exercise decision since 1990,” the justices used the shadow docket to expand religious liberty.
The Trump administration sought emergency relief pending appeal 41 times in four years. Contrast this to the Bush and Obama administrations seeking such relief eight times in 16 years. The justices largely acquiesced to the Trump applications, granting 28 in full or in part.
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