Weekly US politics news and updates thread - week of September 6

A couple articles regarding the Court's shadow docket. First some context from an article earlier this year.

• "The Supreme Court Is Making New Law in the Shadows." The New York Times.

The University of Chicago law professor Will Baude coined the term “shadow docket” in 2015 to describe that part of the justices’ workload that is resolved through summary orders, rather than lengthy opinions after multiple rounds of briefing and oral argument. Like all courts, the Supreme Court has always had what’s known as an orders list that is mostly used for anodyne case management issues.

But recent years have seen a significant uptick in the volume of “shadow docket” rulings that are resolving matters beyond those issues, especially orders changing the effect of lower-court rulings while they are appealed.

[...]

But whereas virtually all of the Trump cases involved “stays” pending appeal, where a lower court had already ruled against the government, the California ruling involved a far more aggressive form of emergency relief — where a party challenging a government policy that lost in the lower courts seeks to have the policy frozen pending appeal.

For decades, the Supreme Court has insisted that these emergency injunctions should be far rarer than stays. Summarizing the precedents, Justice Antonin Scalia explained in 1986 that such relief should be granted “sparingly and only in the most critical and exigent circumstances, and only where the legal rights at issue are indisputably clear.” It ought to follow that newly minted rights, such as the one the court articulated on Friday, are not “indisputably clear.”

This is not just a technical point; it goes directly to the Supreme Court’s constitutionally mandated (and self-described) role in our constitutional system. As Justice Scalia put it, unlike a stay, which is a short-term order delaying a proceeding, an injunction “does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.”

• "The Supreme Court doesn’t just abuse its shadow docket. It does so inconsistently." The Washington Post.

The shadow docket is nothing new; for as long as there has been a Supreme Court, it has issued orders to manage its docket while it decides which cases to resolve — and how. [...]

Two things have changed in recent years. First, the court is using these orders with far greater frequency to allow much-debated policies to go into effect. During the Trump administration, for instance, the justices issued 28 orders at the request of the administration that blocked adverse lower-court rulings while the government appealed. This had the effect of allowing the government to enforce policies that had been invalidated by every other court ruling on their legality. In contrast, the Supreme Court issued only four such orders during the 16 years spanning the presidencies of both George W. Bush and Barack Obama. The court is also using these orders far more often to directly block government policies at the outset of litigation, when lower courts have refused to do so. Since Justice Amy Coney Barrett joined the court in October, the justices have issued seven emergency injunctions to block state coronavirus restrictions, compared with a total of four injunctions directly blocking state laws issued by the court during the first 15 years of Chief Justice John G. Roberts Jr.’s tenure.

In the first article, Professor Vladeck explains how the shadow docket was abused to expand religious liberty at the expense of public health. In the second, he further details how the Court's action regarding Texas's (plainly unconstitutional) abortion ban further undermines the Court's legitimacy.

[Edit: one more article on the shadow docket.]

• "In the Dead of Night, the Supreme Court Proved It Has Too Much Power." The New York Times.

It is common enough knowledge that the Supreme Court’s power to shape American society is a function not so much of its formal power under the Constitution as it is of its popular legitimacy. And much of that legitimacy rests on the idea that the court is acting fairly, transparently and in good faith. It rests, as well, on the idea of the court as a partner in governance and a safeguard for the rights of the American people. Or, as Franklin Roosevelt said in a 1937 “fireside chat” on his plan to restructure the Supreme Court in response to the intransigence of conservative justices: “We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men.”

The court’s abuse of the shadow docket is in that category: actions that threaten to place the rule of men over the rule of law. It’s not that the court is political — that is to be expected — but that its conservative majority is acting in arbitrary, secretive ways, with hardly any justification other than its own power to do so.

Now maybe some optimistic news.

• "What the Justice Department should do to stop the Texas abortion law." The Washington Post.

Lawrence Tribe is probably the foremost expert on US constitutional law. Here he lays down a roadmap for the Justice Department to prevent Texans from enforcing the abortion ban.

The attorney general should announce, as swiftly as possible, that he will use federal law to the extent possible to deter and prevent bounty hunters from employing the Texas law. If Texas wants to empower private vigilantes to intimidate abortion providers from serving women, why not make bounty hunters think twice before engaging in that intimidation?

For example, Section 242 of the federal criminal code makes it a crime for those who, “under color of law,” willfully deprive individuals “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”

This statute — originally designed to go after the Ku Klux Klan — fits the Texas situation perfectly: The bounty seekers, entitled under the Texas law to collect penalties of at least $10,000, have been made, in effect, private attorneys general of Texas. They act “under color of state law,” and unless and until Roe v. Wade is overruled, they unmistakably intend to prevent the exercise of a constitutional right.

A day later, the Justice Department announced that it would act to protect those seeking abortions in Texas, albeit by enforcing a different law.

"Justice Department Says U.S. Will ‘Protect’ Texas Women Seeking Abortions." The New York Times.

Mr. Garland said the Justice Department would “protect the constitutional rights of women and other persons” under the Freedom of Access to Clinic Entrances Act, or FACE, a 1994 federal law that guarantees access to the entrances of clinics that offer reproductive health services, including those that offer abortions. Under the law, it is illegal to threaten, obstruct or injure a person seeking access to such a clinic or to damage the clinic’s property, punishable by a fine or imprisonment.

Some polling on how Americans relate to (Islamic fundamentalist) terrorism and 9/11: Americans have never forgotten 9/11

There are so few moments in history that call for the question “Where were you when you heard the news?” But the Sept. 11 attacks are undoubtedly one, and most Americans can answer that question without missing a beat. Earlier this month, YouGov asked Americans if they could remember where they were, and 81 percent said they could. In a separate poll, Pew Research Center found that 93 percent of adults age 30 (or 10 and older at the attacks) and over could remember.

For example, Americans have remained convinced that a terrorist attack is likely. A series of polls from The Economist/YouGov conducted from 2013 to 20211 asked what Americans think are the chances of a terrorist attack in the U.S. in the next 12 months. Those who thought an attack was “very” or “somewhat” likely rarely dipped below 50 percent and often spiked following major terrorist attacks in the U.S. or Europe. (Any time the responses rose about 70 percent, it was following a major attack.)

Similarly, Pew’s annual survey of policy priorities has found Americans rank terrorism at or near the top of the list year over year. As recently as 2020, 74 percent of Americans said defending against terrorism should be (one of the) top priorities for the president and Congress, making it the number-one policy issue.

Americans also consistently say that 9/11 has had a lasting impact on this country. [...] Notably, though, the feelings on whether this is a change for the better or worse has shifted: In 2002, 67 percent of Americans said that the 9/11 attacks changed America for the better. That number has declined since, with only 33 percent saying so in 2021.

I would have liked some polling on how people feel about the public reaction to the attack in hindsight since to me the highlight of the attack is that somewhere around 3 out of 4 Americans who previously opposed George H.W Bush became supporters of him basically overnight, although IMO the way the article talks about the event demonstrates that asking that question would probably not give you the best results.