“Is it possible for Congress to write a law that prohibits shadow docket rulings and/or forces a full written ruling explaining the reasoning?” – Ian
Hi Ian,
Democrats introduced a bill this week that seeks to address the issue you raise. Called the Shadow Docket Sunlight Act, it wouldn’t prohibit shadow docket rulings — meaning ones issued in response to emergency appeals without the benefit of full briefing and public hearings. But it would require written explanations and indications of how each justice voted.
I say the bill would do these things because we can safely assume that it won’t become law as long as Republicans control the Congress and the presidency. That reality staves off the power struggle that could ensue if the justices were to resist the measure as an unconstitutional incursion on their authority.
But even if the bill goes nowhere, it’s a good reminder of the status quo’s absurdity. The justices shouldn’t need legislation to force them to explain themselves or take responsibility for their votes. They should understand that it’s the least they owe the American people who are bound by their decisions. They’re thinking something when they make those decisions, so why not write it down and publish it? It’s a small ask.
A recent case that the bill’s sponsors cite as an impetus for the measure illustrates the needless problem.
That’s the court’s September ruling in Noem v. Vasquez Perdomo. It was an unsigned, unexplained order granting the Trump administration’s appeal to lift a judge’s injunction that had curbed racial profiling in Los Angeles-area immigration stops. Justice Brett Kavanaugh offered his own defense of the order in a 10-page solo concurring opinion, which led to the term “Kavanaugh Stops” catching on. Justice Sonia Sotomayor wrote a 21-page dissent for the three Democratic appointees, calling the majority’s action “unconscionably irreconcilable with our Nation’s constitutional guarantees.” She wrote that the decision to lift the judge’s injunction was “yet another grave misuse of our emergency docket,” using a more polite term for the shadow docket. Regardless of whether one agrees with Kavanaugh’s or Sotomayor’s legal reasoning, the fact that the only reasoning came from them is difficult to defend. The other five GOP appointees in the majority had nothing to say besides effectively saying: The government wins. That they would need legislation to force them to explain why is a damning indictment of the court. Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal Newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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