Justice John Roberts Joins Liberals To Criticize “Shadow Docket”

(RepublicanInformer.com)- Chief Justice John Roberts is again siding with the three liberal justices on the Supreme Court.

This time, he criticized the “shadow docket” and the move by the high court recently to grant what he called an unwarranted request on the emergency docket.

On Wednesday, the Supreme Court ruled 5-4 in a case that restricts states’ authority to reject federal permits issued under the Clean Water Act. Roberts voted in step with the three liberal justices.

In the dissent, Justice Elena Kagan wrote the majority of the high court had “gone astray” by doing this through the emergency docket. She wrote:

“That renders the Court’s emergency docket not for emergencies at all. This Court may stay a decision under review in a court of appeals only in extraordinary circumstances and upon the weightiest considerations.”

She continued by writing that the request for a stay by the challengers rested only on “simple assertions — on conjectures, unsupported by any present-day evidence.”

In other words, Kagan and the dissenters were writing that the Republican states that petitioned the Supreme Court for emergency relief in this case didn’t show they would suffer any irreparable harm that is necessary to prove their case.

Kagan also wrote that the emergency docket now “becomes only another place for merits determination — except without full briefing and argument.”

Some people refer to the Supreme Court’s emergency docket as the “shadow docket.” In recent years, it’s come under much more criticism, with people saying important issues end up being resolved through it. The problem with that, they say, is it doesn’t allow for a full schedule of briefings as well as oral arguments.

Many of the liberal justices have railed against it in the past, but this marks the first time that Roberts has joined them in saying so. It’s not just a simple decision, either. It’s one that could have long-lasting consequences on the higher court.

As University of Texas School of Law professor Steve Vladeck recently told CNN:

“Today’s ruling is the first time [Roberts has] joined in publicly criticizing the majority for how it is using and abusing the shadow docket. That’s a pretty significant development, and a strong signal for the Court’s de facto leader to be sending.”

But, while liberal justices — and now Roberts, too — have criticized the shadow docket, others have said that it is often misunderstood. Last fall, Justice Samuel Alito, a conservative, issued a rebuttal as part of his speech.

He said that are complications that abound with emergency requests, adding justices do “the best we can” with the constraints that these situations present. Alito added criticism about the shadow docket is “very misleading,” saying there’s “absolutely nothing new about emergency applications.”

The rule that the court decided on this week reinstates a policy under former President Donald Trump.

Ultimately, it restricts the ability of states to reject federal permits for any projects that would affect waters that are located in their borders.