REPORT: The Latest 'Shadow Docket' Scandal Proves Between the Justices and Legacy Media, SCOTUS Is Toast
This week seems to be rife with journalistic
malpractice from outlets either running with leaked and unsubstantiated
material that tries and fails to put Trump administration officials in a
bad light or works to erode and undermine our nation's institutional
bodies of governance.
The latest installment from The New York Times involves leaked memos from the United States Supreme Court, verified by more anonymous sources.
The
Times spoke to 10 people, liberals and conservatives, who were familiar
with the deliberations over the pivotal emergency order and who spoke
on the condition of anonymity because confidentiality was a condition of
their employment.
Amazing how one can fail so spectacularly on this basic tenet of integrity. God help us.
The
papers expose what critics have called the weakness at the heart of the
shadow docket: an absence of the kind of rigorous debate that the
justices devote to their normal cases.
After obtaining the papers,
The Times confirmed their authenticity with several people familiar
with the deliberations and shared them with a spokeswoman for the court.
The Times posed detailed questions to the justices who wrote the memos;
they did not respond.
Nor should they.
As RedState reported in February,
Chief Justice Roberts took action to secure the integrity of the
court's processes after the 2022 leak of the draft opinion in Dobbs v. Jackson Women's Health.
Two months later, if this latest tranche of leaked memos is any
indication, it hasn't worked. Between justices Sonia Sotomayor and
Ketanji Brown Jackson publicly criticizing their constitutionalist
colleagues, and the legacy media's breathlessly publishing unsourced and
leaked material, soon there will not be a Supreme Court left to
preserve.
Of course, the NYT has invented a
"shadow docket" scandal from the Court's use of emergency rulings,
particularly in the area of executive powers of the President of the United States.
Emergency orders based on abbreviated briefing and almost
no deliberation have now become commonplace, notably in cases arising
from challenges to presidential actions. Critics call this new way of
doing business the “shadow docket.”
How stunning and brave. The "critics" are also nameless blobs whose opinion holds as much credibility as these leaking anonymous employees.
The
New York Times has obtained those papers and is now publishing them,
bringing the origins of the Supreme Court’s shadow docket into the
light.
The 16 pages of memos, exchanged in a five-day dash,
provide an extraordinarily rare window into the court, showing how the
justices talk to one another outside of public view.
The
leaked memos were in reference to a 2016 emergency ruling against the
Obama administration on the Clean Energy Plan. From here, the NYT
created an entire narrative that blocking then-President Barack Obama's
aims to save the planet was not only terrible, but rooted in Chief
Justice John Roberts personal animus toward Obama.
However, the
same so-called shadow docket methods employed in 2016 have been used in
2025 to issue favorable rulings on President Donald Trump's use of
executive powers. And in the NYT's world, this is beyond the pale. The
paper further claims that Chief Justice Roberts has allowed this use of
shadow docket methodology to run amok, firing off emergency rulings
instead of going through the court's hallowed deliberative judicial
process.
Viewed through the outlet's TDS-riddled glasses,
everything is stupid, including Supreme Court decisions. This has become
incredibly tiresome.
At the time, the ruling seemed like a curious one-off.
But that single paragraph turned out to be a sharp and lasting break.
That night marks the birth, many legal experts believe, of the court’s
modern “shadow docket,” the secretive track that the Supreme Court has
since used to make many major decisions, including granting President
Trump more than 20 key victories on issues from immigration to agency
power.
From this, the NYT surmises that Roberts is on Team Trump. Quite a leap.
In
the Trump era, he and the other conservative justices have repeatedly
empowered the president through their shadow docket rulings. By
contrast, the papers reveal a court wielding those same powers to block
Mr. Obama. Justice Samuel A. Alito Jr. warned that if the court failed
to stop the president, its own “institutional legitimacy” would be
threatened.
The court’s liberals pushed back, but compared with
their recent slashing dissents, they were not especially forceful,
mostly confining their arguments to procedures and timing.
[...]
Since
that breakneck February 2016 exchange, the emergency docket has swelled
into a major part of the court’s business, as the justices have
short-circuited the deliberations of lower courts. The decisions are
technically temporary, but are often hugely consequential.
Rulings
with no explanation or reasoning, like the sparse paragraph from that
February night, have become routine. The emergency docket is now a
central legacy of the court led by Chief Justice Roberts.
NYT finally came to this gobsmacking conclusion:
Read
a decade later, the memos suggest that none of the justices fully
appreciated what they were doing: embarking on a questionable new way of
operating.
So, Chief Justice Roberts and all the other justices at that time
were not only partisan hacks, but they failed to fully weigh the gravity
of their decisions. This comes off as elitist and patronizing on its
face.
The NYT did not miss a step, burnishing Obama's legacy while
painting Roberts' motivation in his ruling against Obama in the fact
that then-Senator Barack Obama voted against Roberts' confirmation to
the Supreme Court. What rank nonsense.
The president
was under enormous pressure to address the global climate crisis. He had
campaigned on that promise, then for eight years as the planet heated,
he failed to get major environmental legislation through Congress. With
his term about to end, this was his last chance to act.
The chief
justice was eager to assert his institution’s authority and to rein in
Mr. Obama’s Environmental Protection Agency, which he believed had
sidestepped a recent ruling.
How exactly does the NYT explain the egregious 2012 Obamacare ruling where Roberts created a tax from whole cloth?
True,
Chief Justice Roberts had cast the decisive vote in 2012 to save the
centerpiece of the Affordable Care Act, Mr. Obama’s signature
legislative achievement. But that was approved by Congress.
Yes, that explains everything. Puddle-depth reasoning right here.
The
NYT does admit that Obama's second term was marked by him essentially
going rogue, from the Dreamers to the Iran nuclear deal, to his Clean
Power Plan, which was simply a climate change makeover of the entire
energy sector.
The chief justice
and some of his colleagues were watching warily, concerned the president
was going past what the Constitution allowed him to do on his own. In a
2014 opinion written by Justice Antonin Scalia, the court warned Mr.
Obama that he needed to tread carefully in setting environmental policy
without congressional approval.
With the legal challenges to the Clean Power Plan rising quickly to
the highest court, and media outlets like the NYT carrying water for the
Obama administration on this signature climate legislation, according
to the NYT's reading of these memos, Chief Justice Roberts was decisive
in his actions to expedite a ruling.
On Feb. 5, the
internal correspondence obtained by The Times shows, the chief justice
circulated a blast of a memo, insisting that the court halt the
president’s plan.
His arguments were forceful, quick, and filled
with confident predictions. The court was going to give the case a full
hearing eventually, he forecast. At that point, the justices would vote
to overturn the Obama plan, he said, because it went beyond the
boundaries of the Clean Air Act.
For now, the chief justice
contended that the court had to act immediately because the energy
industry “must make changes to business plans today.”
“Absent a
stay, the Clean Power Plan will cause (and is causing) substantial and
irreversible reordering of the domestic power sector before this court
has an opportunity to review its legality,” he wrote.
It
appeared that Chief Justice Roberts surmised that, if the court was
able to do its normal deliberations, the court would ultimately rule
against the Clean Power Plan, so a stay was in order. Frankly, this is
the role of the Chief Justice, and the more conservative-leaning
justices backed his play. The more liberal justices, not so much, as
referenced by the response by Justice Elena Kagan.
Court
action at this point in the process would be “unprecedented,” she
added. She mentioned that she was inclined to find that the Obama plan
was lawful, but she said the thin briefing made it difficult for her “to
determine with any confidence which side is ultimately likely to
prevail.”
Justice Alito issued a salvo on the same day as Justice
Kagan, with neither of them addressing the other. Echoing the chief
justice’s sense of insult and suspicion about the Obama administration,
he wrote that the E.P.A. appeared to be trying to render the court
irrelevant.
Of course, the NYT continued to color their narrative, saying Roberts
distrusted the Obama administration; so, he used strong-arm tactics to
create what has become what they consider a dangerous precedent.
Over
just five days, the justices had decided the issue. Even as they
debated the Obama plan’s possible burden on the power industry, in the
entire chain of correspondence obtained by The Times, not a single
justice, conservative or liberal, mentioned the dangers of a warming
planet as one of the possible harms the court should consider.
In
light of the entire climate boondoggle and Green New Scam being
dismantled and debunked in real time, Roberts could practically be seen
as Nostradamus for blocking the Obama administration's plans to destroy
America's energy sector. The NYT notes that this emergency decision
would be the last for Justice Antonin Scalia. Four days later, Scalia
would be found dead, leaving a vacancy in the highest judicial body that
would not be filled that year. Because it was an election year,
then-Senate Majority Leader Mitch McConnell (R-KY) refused to advance
President Obama's nomination of Merrick Garland. Despite McConnell's
terrible legacy of late and ignominious retirement from the Senate,
McConnell will be forever remembered for saving the nation from a
lifetime Merrick Garland appointment to the court.
The NYT further
concluded that this emergency docket process is a bane to SCOTUS that
has contributed to the undermining of the judicial body.
And, yeah, it's all Trump's fault.
Since
then, even as the court’s approval ratings dropped, applications like
the one it confronted a decade ago have proliferated, swamping the
court’s ordinary work.
This is partly a consequence of a
gridlocked Congress and presidents willing to push the boundaries of
executive power, particularly Mr. Trump.
But it is also the result
of the justices’ decision to entertain emergency requests like the one
in 2016, warping procedures that had developed over centuries.
Perhaps someone could also point out to the brain
trust at the NYT that it is the Left's penchant for lawfare and the
activist judges who make these highly partisan and ideologically skewed
decisions that have resulted in the need for a method that expedites
reviews and judgments by the highest court.
Of all people, Justice Sotomayor admits as much.
In
an appearance this month at the University of Alabama, Justice Sonia
Sotomayor reflected on the unceasing flood of emergency applications.
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