The fascist shadow docket attack on democracy and the rule of law

Yikes! Much unrighteous truth suppressing is going on

so presumably that will be followed by much smiting

in some form of another, e.g., lightening bolts maybe?

(Hm, seems there's a lot of versions of Romans 1:18)

The fascist Republican Party (FRP) has ramped up its attacks on democracy and the rule of law, in part by avoiding accountability using a legal tactic called the shadow docket. This is a legal tactic that FRP courts use to side step normal due process, attention to decisions and especially legal reasoning they want to keep hidden from the American people. The recent Supreme Court 'decision' on the devastating Texas anti-abortion law (discussed here yesterday) was an example.

The New York Times writes: 

A process intended to help the court deal with emergency petitions and routine matters has grown into a backdoor way of making major policy decisions.

Most of the time, the Supreme Court appears to the public like a cautiously deliberative body. Before issuing major rulings, the justices pore over extensive written briefs, grill lawyers in oral arguments and then take months to draft opinions explaining their reasoning, which they release at precisely calibrated moments.

Then there is the “shadow docket.”

With increasing frequency, the court is taking up weighty matters in a rushed way, considering emergency petitions that often yield late-night decisions issued with minimal or no written opinions. Such orders have reshaped the legal landscape in recent years on high-profile matters like changes to immigration enforcement, disputes over election rules, and public-health orders barring religious gatherings and evictions during the pandemic.

The latest and perhaps most powerful example came just before midnight on Wednesday, when the court ruled 5 to 4 to leave in place a novel Texas law that bars most abortions in the state — a momentous development in the decades-long judicial battle over abortion rights.

The court spent less than three days dealing with the case. There were no oral arguments before the justices. The majority opinion was unsigned and one paragraph long. In a dissent, Justice Elena Kagan said the case illustrated “just how far the court’s ‘shadow-docket’ decisions may depart” from the usual judicial process and said use of the shadow docket “every day becomes more unreasoned, inconsistent and impossible to defend.”

Unreasoned, inconsistent and impossible to defend. That sounds like how the FRP has to operate because it has lost too much public support. Demographic and social changes run against the modern FRP. It cannot operate on the basis of real facts, true truths and sound reasoning. If it did so, it would lose significant power and relevance. Instead, the FRP has no choice but to operate on the basis of divisive, polarizing lies, falsehoods, irrational emotional manipulation and crackpot motivated reasoning, i.e., dark free speech.

Other examples of shadow docket action[1] for the FRP include striking down a California Covid-based restriction on in-home gatherings on the ground that it interfered with religious practice in violation of the First Amendment’s free exercise clause. This trend started before the ex-president was elected. For example, in February 2016 the Supreme Court blocked an important Obama-era environmental rule without any hearing arguments or issuing a formal opinion. A recent FRP shadow docket decision lifted the federal ban on COVID-related evictions.

During the ex-president's time in office his administration was granted shadow docker relief over 35 times on various issues that the FRP wanted to be kept as quiet and unexplained as possible. So far the Biden administration has asked for shadow docket relief once, but that was denied. In that case, the court rejected the Biden administration’s plea for a reprieve from a district-court order requiring it to reinstate a Trump-era immigration policy called the “remain in Mexico” policy. That policy requires asylum seekers to stay in Mexico while waiting for a decision on their asylum claims.

Questions: Is it reasonable to believe that the FRP, specifically the six radical Christian nationalist fundamentalists on the Supreme Court, will use this means to hide truth from the American people? Is it reasonable to expect that the current Supreme Court will generally be hostile to Biden administration shadow docket requests, while remaining generally open to pleads from the FRP?

Footnote: 

1. An influential law journal article from January of 2015 commented about opacity and some "lightening bolts" that emanate from the shadow docket:

The 2013 Supreme Court Term provides an occasion to look beyond the Court’s merits cases to the Court’s shadow docket — a range of orders and summary decisions that defy its normal procedural regularity. 

I make two claims: First, many of the orders lack the transparency that we have come to appreciate in its merits cases. Some of those orders merit more explanation, and should make us skeptical of proposals to depersonalize the Court. 

Second, I address summary reversal orders in particular. As a general matter, the summary reversal has become a regular part of the Supreme Court’s practice. But the selection of cases for summary reversal remains a mystery. This mystery makes it difficult to tell whether the Court’s selections are fair.  

I catalogue the Roberts Court’s summary reversals and suggest that they can be grouped into two main categories — a majority that are designed to enforce the Court’s supremacy over recalcitrant lower courts, and a minority that are more akin to ad hoc exercises of prerogative, or “lightning bolts.” The majority, the supremacy-enforcing ones, could be rendered fairer through identification of areas where lower-court willfulness currently goes unaddressed. We may simply be stuck with the lightning bolts.

God: Take that, you fibber and hider of truth

Fibber & hider: Ouch! Cut that out! That one stung!

God: My mistake, sorry. In future I'll stick to blasting 

Democrats and deep state lizard people. Forgive me.

Fibber & hider: OK, fine. But just be damn sure it doesn't happen again 

you careless boob.