In a rare move showing just how extreme the right-wing has become on the Supreme Court, Chief Justice John Roberts joined a dissent written by Justice Elena Kagan ripping their abuse of the “shadow docket.”
Ever since Republicans stole the majority on the high court, the conservative members have used the shadow docket to make rulings without hearing arguments or engaging in debate. One of the worst examples of this was when the court recently allowed Texas’ unconstitutional anti-abortion law remain in effect despite it being challenged. Laws challenged in court are usually paused from going into effect until a final decision is made.
The law bans abortion after six weeks before most women even know they are pregnant and turns citizens into bounty hunters who can sue anyone for helping a woman get the procedure.
In the latest abuse of power by the conservative wing of the Supreme Court, a 5-4 ruling allows a Trump rule to remain in effect letting states dump pollutants in clean water, which goes completely against the Clean Water Act. Once again, this ruling was issued by the shadow docket, but it was far from the definition of an emergency.
The reason why the ruling was issued by a 5-4 majority, however, is because Chief Justice John Roberts broke from the conservative wing and even joined a powerful dissent condemning the abuse of power.
“The applicants here have not met our standard because they have failed to substantiate their assertions of irreparable harm,” the dissent said. “By nonetheless granting relief, the Court goes astray. It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required. That renders the Court’s emergency docket not for emergencies at all. The docket becomes only another place for merits determinations — except made without full briefing and argument.”
By 5-4 vote (with Chief Justice Roberts joining the progressives in dissent), #SCOTUS issues shadow docket stay of district court decision that had vacated a Clean Water Act certification rule. Per Kagan, J.: “That renders the Court’s emergency docket not for emergencies at all.” pic.twitter.com/yX6qvSrzLc
— Steve Vladeck (@steve_vladeck) April 6, 2022
Conservatives are abusing their power on the court. There’s no better justification for impeaching them or expanding the court. Democrats have offered legislation to expand the court by four seats. This plan is perfectly constitutional and Congress has expanded and contracted the number of seats on the court several times over the years. Clearly, it’s time to do so again.
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