I am beginning to think that Trump has “glossies” of John Roberts and a couple of the other Justices in the majority misnamed as “conservative.” (A genuine conservative would conserve precedents–these justices are radical, and in at least two cases–Alito and Thomas–demonstrably corrupt.)
The judges of the lower federal courts–even the ones appropriately labeled conservative–have demonstrated fidelity to the rule of law, and to stare decisis, or precedent. Judges nominated by both Democratic and Republican Presidents, judges nominated by Trump himself, have ruled against our would-be dictator over 80% of the time. They have issued well-researched, thoughtful judgments, clearly explaining the grounds of their decisions, only to be summarily over-ruled in terse, six to three Shadow Docket rulings from the Supreme Court.
Most Americans have never heard of the Court’s Shadow Docket, because–until recently–it has been used very sparingly. The shadow docket has formerly been used in Supreme Court cases requiring immediate decision–things like death penalty stays, injunctions, and other matters requiring urgency. Such urgent matters are thus decided without full briefing, oral argument, or written reasoning. When appropriately used, the Shadow Docket is a legitimate tool of Court jurisprudence, but the increased frequency of these decisions during the Trump administration has raised concerns about transparency and significantly damaged the Court’s legitimacy.
Decisions delivered via the shadow docket lack the detailed analysis that allows lower courts to align their own reasoning with that of the Supreme Court. The increasing frequency of these “stealth rulings” undermines the public’s understanding as well as the legal community’s ability to interpret, apply and conform.
It isn’t just the increased frequency of Shadow Docket use. Far too many of these brief and unsettling decisions have upended longstanding Constitutional rules. Easily the most appalling was the Court’s recent gutting of the Fourth Amendment’s requirement of probable cause. In a 6-3 vote in Vasquez Perdomo v. Noem, the Supreme Court temporarily halted a LA judge’s order that barred “roving patrols” from snatching people off California streets and questioning them based on how they look, what language they speak, what work they do, or even where they happen to be.
Both a Los Angeles federal court and the 9th Circuit Court of Appeals had ruled–in detailed, persuasive decisions– that these actions clearly amounted to illegal racial profiling.
In a stinging dissent, Justice Sotomayor warned that this decision turns Latinos into second class citizens. She wrote “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent.”
A lawyer friend who has been both a prosecutor and a defense attorney, as well as chief of a law enforcement department and a law school professor, reacted with an anguished Facebook post. He began ” The United States of America, a nation of laws, not men, no longer exists. Today the United States Supreme Court, in a 6-3 vote, decided that immigration officers may detain people for no reason other than the color of their skin…The United States Supreme Court approving detention based upon skin color is not just the end of the rule of law, it is the end of the United States as a constitutional democracy, which comes with separation of powers and no person being beyond the law.”
He proceeded to say that he would “surrender my admission to the United States Supreme Court. The admission comes with an oath the Court no longer recognizes, and I no longer recognize it.”
I taught Law and Public Policy to university students for 21 years. Many of those students were criminal justice majors, and along with the rest of the faculty, I emphasized the constitutional imperative of basing arrests on probable cause. We warned students against detaining citizens based upon “hunches” or–worse–identity, and shared the numerous legal cases that underlined that constitutional mandate.
The Court’s decision–contrary to decades of contrary precedent and to the uncontested facts underlying the lower court rulings–a decision delivered via the inappropriate Shadow Docket, was a betrayal not only of their oath, but of America.
If this country survives as a constitutional democracy–no sure thing–the Roberts Court will take a shameful place in history alongside the January 6th insurgents.
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