In The Federalist Papers Alexander Hamilton defended the creation of an unelected judiciary with life tenure, describing that branch “as the least dangerous to the political rights of the constitution.” Lacking “either the sword or the purse,” in Hamilton’s view, the judiciary would have to rely upon “merely judgment.”
As frequently happens with words of wisdom, the accompanying caveat is soon forgotten. Hamilton had followed the above description of the judiciary with a prescient warning: “…liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments….”
Decisions and other actions by the current US Supreme Court (SCOTUS) confirm Hamilton’s admonition.
Today’s SCOTUS is the result of a well-organized effort to reshape the political and legal environment of the United States. A major player in this effort has been The Federalist Society, which began in 1982 as a student organization with members from law schools at Yale, Harvard and the University of Chicago. According to the society’s website, it is an organization of “conservatives and libertarians…”who are committed to the view that the “duty of the judiciary is to say what the law is, not what it should be.” This obviously means reining in the executive branch which has been the political engine of American progress since the days of FDR.
All six of the existing SCOTUS majority are members of The Federalist Society, which offers some insight as to their agenda. They are on the bench at least in part because of the skills and efforts of the society’s longtime executive Leonard Leo. According to a Washington Post analysis, Leo and his allies collected $250 million between 2014 and 2017 from undisclosed donors to fund the takeover campaign.
The influence of The Federalist Society has been apparent since the appointments of Sam Alito and John Roberts in 2005. Replacing Chief Justice William Rehnquist, Roberts has on occasion honored a previous commitment to precedent (stare decisis), a fundamental pillar of common law, but he has still sought to turn the clock back in a number of areas, such as campaign finance, labor relations, climate change, and voting rights.
Justice Anthony Kennedy’s retirement in the summer of 2018 gave the conservatives a majority on SCOTUS, and the 6-3 advantage was nailed down in October 2020, with the confirmation of Justice Amy Coney Barrett, replacing Justice Ruth Bader Ginsburg who had died in September.
Donald J. Trump has tried to take credit for the conservative character of SCOTUS today, but the fact is his three appointments came from a list provided by Leo prior to the 2016 election for the clear transactional purpose of attracting right-wing votes. And the successful management of the confirmations in the senate was the work of the GOP Majority Leader Mitch McConnell.
SCOTUS decisions over the past couple of court sessions have been consistent with Federalist Society philosophy, if not with logic. For example, the question of abortion rights has been referred to the states, while the states’ authority to regulate gun ownership has been gutted. They have also ignored the First Amendment’s establishment clause while broadening religious privilege.
Although the Federalist majority proclaims fidelity to “originalism,” it has discovered a brand new constitutional doctrine labeled “major questions.” Under this rubric, SCOTUS asserts the right to judge whether or not the legislative branch should have given more specific instructions when it has delegated authority to the executive branch. It used this “doctrine” to knock down the student loan debt program. That decision, however, did not spell out the criteria for determining when a program should be squelched on grounds of being a “major question” issue. Therefore, the doctrine appears to be open-ended.
But perhaps today’s SCOTUS’s greatest threat to constitutional rights is its excessive use of the “shadow docket” to address significant legal issues. The term shadow docket refers to unsigned and unargued orders from the court as opposed to the “merit docket” which refers to the signed decisions, published and explained after hearing argument. Although the shadow docket has long been considered an appropriate vehicle for addressing issues that demand urgent attention, its overuse endangers the court’s legitimacy.
Law Professor Stephen Vladeck of the University of Texas has published a well-researched analysis of SCOTUS’s recent cursorily issuance of injunctions and emergency orders to preserve the status quo. Entitled, The Shadow Docket: How the Supreme Court uses stealth rulings to amass power and undermine the Republic, Vladeck’s study recounts how the court majority has intervened in cases related to abortion, voting rights, the death penalty and Covid policy via the shadow docket. This activity has sharpened the partisan divide among the justices and engendered distrust among the public. When judicial decisions are made without open discussion, without the assistance of outside briefs, and without any recorded vote, it is difficult for the public to understand the ultimate rulings. Even legal experts are left in limbo.
On September 1, 2022, SCOTUS issued an emergency order providing injunctive relief for Texas to proceed with implementation of its six-week abortion ban. The ban included the unprecedented provision that invites private citizens to pursue legal action against violators of the law, but does not permit state agencies or officers to do so. In addition, it authorizes a $10,000 damages reward for persons who file a successful charge against a violator of the law. It was clearly inconsistent with Roe v. Wade, which provided a constitutional right to an abortion and was still in effect at the time.
Justice Elena Kagan, a former law school dean and US Solicitor General, was so disturbed by this action that she attached a dissent:
Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals---which is right now considering the same issues. It has reviewed only the most cursory party submission, and then only hastily. And it barely bothers to explain its conclusion---that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways the majority’s decision is emblematic of too much of this Court’s shadow docket decision-making---which every day becomes more unreasoned, inconsistent, and impossible to defend. I respectfully dissent.
Kagan was wrong about the prospects for the legislation to prevail, but quite correct about the unfortunate and dangerous departure from the “usual principles of appellate process.”
https://guides.loc.gov/federalist-papers/text-71-80#s-lg-box-wrapper-25493470
https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts/
https://www.theguardian.com/commentisfree/2023/jun/30/supreme-court-leonard-leo-dark-money
https://www.washingtonpost.com/investigations/2023/07/20/leonard-leo-clarence-thomas-paoletta/
The Shadow Docket, Stephen Vladeck, Basic Books (May 2023)