Stephen Breyer, One of America’s Liberal Lions, Emerges as Surprise Supporter of SCOTUS Shadow Docket

The defense by Justice Stephen Breyer of the Supreme Court’s growing reliance on the so-called “shadow docket” is a surprising intervention by a retired jurist with impeccable liberal credentialsJustice Breyer, who was appointed by President Clinton and served on the high court for 28 years, retired in 2022. He was replaced by Justice Ketanji Brown Jackson, the court’s junior justice. Justice Breyer, though, was in attendance — and clad in black robes — for King Charles III’s address to a joint session of Congress.At a speech last week at Harvard — he teaches at the law school — the erstwhile justice was asked “Should we be worried about the Court’s reliance on the shadow docket?” That is a reference to cases that the high court hears on an expedited schedule, usually with little briefing and no oral arguments. The decisions are rendered tersely, bereft of the pages of reasoning that usually accompanies high court rulings.The Nine have become more reliant on rendering decisions in this expedited fashion. The New York Times traces the practice back to a 2016 Clean Air case during the Obama Administration. The shadow docket, the Gray Lady asserts, has become “a central legacy of the court led by Chief Justice Roberts” — as well as a “questionable new way of operating.” Mr. Trump has won some 20 decisions decided this way, prompting concern from many on the left that it has become a tool wielded by conservatives. Justice Breyer, though, declared at Harvard that “Every court has what you’re saying is a shadow docket, which we call an emergency docket.” He denounced the notion that “there’s some kind of plot involved within the Court to get this or that decided.” Justice Breyer noted that the shadow docket has long been used for death penalty cases and that sometimes there would be a “very important case about an election or an election rule.”In contrast to the Times, which sees the Roberts Court as “warping procedures,” Justice Breyer, who now teaches at Harvard, views the maturation of the shadow docket as a reflection of “the nature of the constitutional relationship between Congress and the president and the separation of powers.” The spike of the number of judges issuing universal or nationwide injunctions has also led to the high court acting with greater alacrity.So explosive was the increase in nationwide injunctions that the justices in Trump v. Casa ruled to curtail their scope. Mr. Trump has also been aggressive in the issuance of executive orders, which has also led to an increase in snap decisions from the high court. Justice Breyer reasons that “it’s hardly surprising to me, where you have a government that wants to bring those issues up, that you have more cases on the emergency docket.”Justice Breyer joins Justice Samuel Alito in defending the use of the shadow docket, a term coined in 2015 by the conservative legal scholar William Baude. In a 2021 speech at the University of Notre Dame Justice Alito declared that the “catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.” He contended that the “portrayal feeds unprecedented efforts to intimidate the court.”Mr. Baude, though, has argued that the shadow docket, which amounts to “a range of orders and summary decisions that defy” the courts normal procedural regularity and lack the “transparency that we have come to appreciate in its merits cases.” Justice Breyer, though, said that even when the court rules according to its usual process “you can’t always have bright-line rules” about how to handle hot button issues in a sprawling democracy. A less sanguine view of the shadow docket was taken in a dissent by Justice Elana Kagan, the onetime dean of Harvard Law School. She writes in Trump v. Boyle that the conservative court was wielding “its emergency docket to destroy the independence of an independent agency, as established by Congress.” The Supreme Court in Boyle allowed Mr. Trump to fire three commissioners from the Consumer Product Safety Commission.Justice Breyer also told the crowd at Cambridge that “I do not believe that the members of the Supreme Court are there to carry out some political agenda. I think those nine people there are trying their best. I really believe that.” That is a different tone than the one taken this week by his successor, Justice Jackson. She wrote in a dissent that for the majority “principles give way to power.” To that Justice Alito responded “what principle has the Court violated?”

Stephen Breyer, One of America’s Liberal Lions, Emerges as Surprise Supporter of SCOTUS Shadow Docket

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