Years ago we could count on the Supreme Court to stand up for the American people when under attack. Now since Trump has dramatically changed the make-up of the court into a hyper-partisan group by his nominations, we can no longer count on the court for fairness. Trust in them is at an all time low because the conservative majority of the Supreme Court is using and abusing the shadow docket to make significant rulings without hearing the merits of a case, then enacting sweeping and unpopular policies to make radical changes to American society.
The shadow docket was rarely used in the past to adjudicate complex legal questions of national significance; that was reserved for the merits docket where the justices were fully briefed, hearing arguments from both parties, asking questions, deliberating as a group, voting and writing opinions justifying their decisions.
The shadow docket was used almost exclusively for procedural issues, where the justices received one round of briefing, at most, no public oral arguments, rather than a vote the court offered unsigned decisions with little or no explanation and decisions could be released at any time of day often at night. The shadow docket a few years ago began being used regularly for substantive and controversial matters, a change from the past, and the merits docket has diminished, now the smallest it has been since the Civil War.
During the Trump administration, the court showed extreme deference to the Trump administration by issuing 28 orders protecting Trump policies and blocking lower court decisions to halt them; that deference the Biden administration has not received. In the past five years, the Supreme Court has been making shadow docket decisions that impact the lives of millions of people on issues such as public health, LGBTQ and civil rights, and the death penalty.
The procedures of the merits docket are in place for a reason. They work to ensure high quality legal analysis, hold the justices accountable to their vote, increase transparency and hold back the politicization of the court. The court trying to get around these procedures is an outrageous threat to their legitimacy and the rule of law in the United States. There is no reason to believe the ultraconservative court has any plans to stop. The stakes for our institutions and for all Americans could not be higher. Maybe it’s time to change the number that sit on the court, for more equity. Something must be done, they have seriously lost their way and forgotten their history. I sincerely hope the Biden administration will take action to bring the Supreme Court back to their former propriety.