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Roberts Joins Criticism of High Court ‘Shadow Docket’ Orders (1)

April 6, 2022, 4:46 PM

Chief Justice John Roberts for the first time joined the U.S. Supreme Court’s liberal wing in blasting the conservative majority’s handling of the stream of emergency requests that critics have dubbed the “shadow docket.”

Roberts joined the three liberal justices in dissent Wednesday as the court temporarily reinstated a Clean Water Act rule issued by former President Donald Trump’s administration. A federal trial judge had tossed out the rule, which scaled back federal protections for streams, wetlands and other bodies of water.

John Roberts
Photographer: Erin Schaff/The New York Times/Bloomberg

Writing for the dissenters, including Roberts, Justice Elena Kagan said the states and industry groups backing the rule hadn’t shown that its reinstatement would have any practical impact. The court typically requires a showing of “irreparable harm” to issue an emergency order.

The majority’s decision “renders the court’s emergency docket not for emergencies at all,” Kagan wrote. “The docket becomes only another place for merits determinations -- except made without full briefing and argument.”

The Environmental Protection Agency under President Joe Biden is in the process of rewriting the rule. The court is planning to consider a more sweeping clash over the reach of the Clean Water Act in the nine-month term that starts in October.

As is often the case with emergency orders, the court as a whole didn’t explain its reasoning.

The conservative wing has drawn scrutiny for its handling of the emergency docket, which has become an increasingly large chunk of the court’s work. Critics say the court sometimes decides the fate of important government policies with little if any explanation while in other cases creates sweeping precedents without fully vetting the issues.

Conservative justices have rejected those characterizations. In a February decision involving minority voting rights in Alabama, Justice Brett Kavanaugh faulted Kagan for using “catchy but worn-out rhetoric.”

In a speech last year, Justice Samuel Alito said critics were using the “sinister” shadow-docket label to “portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.”

The court has used the emergency docket to let Texas’ six-week abortion ban take effect, block Biden’s workplace vaccine-or-test rule and free houses of worship from capacity limits during the pandemic. The justices have shown signs of heeding some of the criticism, hearing arguments before they blocked the vaccine rule and doing so soon afterward in the abortion case.

The phrase “shadow docket” was coined in a 2015 law review article by University of Chicago law professor William Baude, a former law clerk to Roberts. Liberal advocates have come to use the term in a pejorative way to describe important high court actions that occur without full-scale briefing and arguments.

The Clean Water Act case is Louisiana v. American Rivers, 21A539.

(Adds background on shadow docket starting in seventh paragraph.)

--With assistance from Jennifer A. Dlouhy.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Magan Crane

© 2022 Bloomberg L.P. All rights reserved. Used with permission.