Justice Brett Kavanaugh made a case last week for ditching the “shadow docket” label to describe Supreme Court actions. It was an unconvincing case when he made it, and it became even less convincing just a few days later, when he was the only justice Monday to explain his decision to grant the Trump administration relief in a Fourth Amendment case.
The case, called Noem v. Vasquez Perdomo, is emblematic of issues that give the shadow docket its bad name.
The administration filed an application back on Aug. 7, seeking to lift a restraining order that blocked racial profiling by immigration agents in Los Angeles. Plaintiffs who secured the lower court order filed their opposition brief Aug. 12, and the administration filed its final reply brief to the justices a day later.
Yet, that apparently didn’t leave enough time for the high court’s Republican-appointed majority to craft a publishable explanation for why it decided to side with the administration on Monday.
Justice Sonia Sotomayor penned an impassioned 21-page dissent for the court’s three Democratic appointees, in which she called the majority’s action “unconscionably irreconcilable with our Nation’s constitutional guarantees.”
The majority had no response beyond its unexplained exercise of power.
That silence from five justices raises questions that could’ve been answered by explaining themselves like their four colleagues did. Kavanaugh was the only justice in the majority who shared his thoughts with the public. None of his fellow GOP appointees joined his concurring opinion. That silence from five justices raises questions that could’ve been answered by explaining themselves like their four colleagues did. For example, do they disagree with Kavanaugh’s explanation for siding with the administration? Their refusal to join his opinion at least suggests the possibility. That leaves an odd situation in which it’s possible that the reason the administration won has nothing to do with Kavanaugh’s explanation. That’s probably not the case, but why should we have to speculate? And what about the dissent’s charge that the majority blessed widespread discrimination and abandoned the Constitution in the process? Whether Chief Justice John Roberts and his colleagues deemed the charge unworthy of response, or whether they didn’t have one, either prospect is disturbing and shouldn’t be left to speculation. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
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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