WASHINGTON (AP). Traditionally, it takes months to get an opinion from the U.S. Supreme Court. These rulings are often very specific. During the court's summer break emergency orders are issued that focus on specific issues such as individual cases involving the death penalty.
However, this pattern has changed over the years as decisions are made outside of the normal court procedures. This has been particularly true over the last two weeks. The shadow docket, a shortened process also known as the shadow, has been moving at an astronomical pace, producing decisions regarding immigration, COVID-19, evictions, and most recently, abortion. These three decisions, which are dominated by the conservative wing, could have a huge impact on millions of people in fractions of the time and beyond the usual scrutiny that signed opinions can bring.
My memory tells me that, in most cases, the Supreme Court would act in July or August to deal with something like a death penalty case. It was not like: What immigration law will be in our country? It wasn't like: Will tenants have certain right? Jessica Levinson, Loyola Law School professor, stated that it wasn't the most important substantive questions.
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What IS THE NORMAL PROCESS?
Participants petition the court for cases to be heard. Acceptance of a case is followed by oral arguments before the justices. However, this was done via telephone during the coronavirus era. A case must have been reviewed and appealed in lower courts before this can happen. These deliberations form part of the material that the justices refer to. Parties interested in the case may submit amicus briefs.
After the arguments have been heard, the judges meet in conference to discuss the cases and vote preliminary. Draft opinions are shared and amended, and sometimes changed.
The entire process is deliberative. Justices make their decisions in lengthy legal opinions. It takes several months to go from oral argument to an issued opinion.
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WHAT HAPPENS AT THE SHAODW DOCKET
William Baude, University of Chicago Law School Professor, coined the term shadow docket. It skips many, if not all, of these steps. It lacks transparency and disclosure that is typical of a docket. This is the biggest problem. There was very little interaction between the court, participants, and the defendants and plaintiffs in the three most recent cases. Although none of the orders in the three cases were signed, at least one ended protection for approximately 3.5 million Americans who claimed they would be evicted in the next two-months, according to Census Bureau data starting in August.
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What are the CASES?
The first case dealt with Trump's program to make people wait in Mexico while they seek asylum in the U.S.
The court's conservative majority ruled that the Centers for Disease Control and Prevention did not have the authority to impose a moratorium against evictions. This was a temporary ban that had been put in place due to the coronavirus pandemic.
This week, the court approved a Texas law that bans abortions in Texas. It is the largest curb on the constitutional right to abortion in decades. Despite the fact that the justices raised serious concerns about its constitutionality,
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DO JUSTICES USE THE ABBREVIATED SYSTEM?
Although the liberal wing has voiced its opinion, Chief Justice John Roberts' comments in the abortion case may have been the most direct. He indicated a desire to use the traditional process to allow courts to examine the unusual and unorthodox statutory scheme.
Roberts explained that we are asked to solve these new questions at most preliminarily in a first instance within two days without benefit of consideration by either the District Court or Court of Appeals. "We are also requested to do this without any oral argument or ordinary merits briefing.
Justice Elena Kagan joined Roberts as a dissenting judge in the abortion law case. She also wrote a remark about the shadow docket. She wrote that today's ruling shows how far shadow-docket Court decisions can depart from the normal principles of appellate process. As everyone can agree, this ruling is very important."
Kagan stated that the majority ruling did not include any guidance from the appeals court and included only a cursory review and conclusion of party submissions. Kagan stated that the majority's decision is indicative of too much of this Courts shadow-docket decisionmaking.
