The
shadow
docket
used
to
be
the
sleepy
part
of
the
Court’s
work.
The
ramifications
for
the
individual
litigants
were
still
tremendous,
of
course,
but
the
Court’s
unexplained
rulings
on
half-argued
cases
remained
confined
to
the
caption
itself.
These
days,
it’s
the
Supreme
Court’s
main
stage,
an
opportunity
to
rewrite
long-standing
precedent
through
a
process
barely
a
notch
removed
from
advisory
opinions.
While
once
limited
to
glorified
preliminary
injunctions,
the
Supreme
Court’s
conservative
majority
has
recast
the
shadow
docket
as
an
avenue
to
upset
the
status
quo
and
award
the
administration
victories
that
plaintiffs
have
no
hope
of
seeing
repaired.
Unlike
keeping
some
middle
manager
sidelined,
the
result
of
shadow
docket
decisions
over
independent
agency
leadership,
the
Court’s
order
renders
the
legal
landscape
impossible
to
later
untangle.
And,
on
top
of
this,
the
Court
began
demanding
that
lower
courts
take
the
“vibe
precedent”
of
its
shadow
docket
opinions
as
superseding
existing
precedent.
Justice
Gorsuch
went
so
far
as
to
claim
that
lower
courts
“defy”
the
Supreme
Court
when
they
don’t
apply
the
hinted
at
justifications
in
these
unexplained
emergency
orders
as
controlling
over
existing
caselaw.
Justice
Jackson
referred
to
this
as
Calvinball
jurisprudence
with
a
twist.
More
recently
Justice
Kagan
explained
that
“our
emergency
docket
should
never
be
used,
as
it
has
been
this
year,
to
permit
what
our
own
precedent
bars.”
Professor
Steve
Vladeck
captured
this
bizarro
new
order
perfectly:
“In
a
nutshell,
the
trilogy
appears
to
stand
for
the
(new)
proposition
that
courts
not
only
may,
but
must,
consider
the
possibility
that
a
party
is
likely
to
prevail
even
if
the
governing
precedent
is
squarely
to
the
contrary—if
it’s
a
case
in
which
the
Supreme
Court
is
likely
to
overrule
that
precedent.
In
other
words,
courts
are
now
under
an
obligation
to
issue
equitable
relief
even
in
contexts
in
which
they’re
not
allowed
to
rule
for
the
party
on
the
merits—where,
at
the
Supreme
Court’s
own
insistence,
they’re
unquestionably
bound
to
follow
the
relevant
precedent
until
it
is
overruled.”
But
why
are
the
Republican
justices
so
gassed
up
about
using
the
shadow
docket
to
backdoor
overrule
long-standing
precedent?
They
have
the
votes
to
do
it
“the
right
way,”
of
course.
Why
undermine
the
Court’s
long-term
legitimacy?
Speedrunning
is
definitely
a
factor.
By
issuing
emergency
orders,
the
Court
can
jump
the
line
and
give
the
administration
the
result
it
wants
without
having
to
wait
for
the
slow
wheels
of
the
judiciary
to
run
their
course.
And
a
lack
of
integrity
plays
into
it
as
well,
as
the
GOP
justices
have
expressed
their
understanding
that
precedent
and
the
usual
trappings
of
the
rule
of
law
are
subservient
to
their
new
superlegislature
status.
But
the
news
that
the
Supreme
Court
is
fast-tracking
an
opportunity
to
formally
overrule
Humphrey’s
Executor,
the
near
century
old
precedent
governing
agency
independence
that
the
Court
has
undermined
over
and
over
this
year
without
expressly
addressing,
suggests
an
even
more
cynical
reason
for
its
embrace
of
the
shadow
docket.
They
never
really
wanted
to
overrule
the
case.
This
may
sound
ridiculous
considering
the
open
hostility
the
Court
has
shown
that
precedent,
but
the
evidence
is
there.
Earlier
this
year,
while
authorizing
the
administration
to
keep
NLRB
members
off
the
job
after
Trump
illegally
fired
them
(at
least
according
to
existing
caselaw),
the
Court
went
out
of
its
way
to
invent
a
new
standard
suggesting
that
the
executive
can
fire
independent
agency
leaders…
except
for
the
Federal
Reserve.
With
this
gratuitous
caveat,
the
Court
hoped
to
have
it
both
ways,
allowing
the
administration
to
fire
the
leaders
of
agencies
that
protect
consumers
or
labor
while
keeping
guardrails
up
around
the
agency
that
prevents
the
justices’
own
stock
portfolios
from
suffering.
It’s
a
carveout
that,
as
Justice
Kagan
noted
at
the
time,
wouldn’t
stand
up
to
scrutiny.
But,
coupled
with
their
newfound
stance
that
lower
courts
had
to
apply
their
best
guess
at
the
justifications
of
shadow
docket
rulings,
the
majority
seems
to
have
hoped
that
this
would
force
lower
courts
to
rubberstamp
Trump’s
firings
—
save
any
Federal
Reserve
dismissals
—
and
keep
the
Supreme
Court
out
of
it.
This
strategy
crashed
into
reality
when
the
Trump
administration
went
ahead
with
the
first
baby
steps
in
his
Federal
Reserve
purge.
Now
that
it’s
clear
that
the
administration
isn’t
going
to
leave
the
Fed
out
of
it,
it’s
forced
the
Supreme
Court’s
hand
on
all
of
these
firings,
and
the
justices
had
to
grant
certiorari
to
resolve
the
continuing
validity
of
Humphrey’s
Executor.
They
hoped
to
temporarily
underrule
the
case.
Strong
arm
lower
courts
into
agreeing
that
the
Trump
administration
could
fire
the
Democrats
off
bipartisan
independent
agencies
based
on
the
Court’s
facially
temporary
orders,
while
preserving
Humphrey’s
Executor
so
they
could
block
a
future
Democratic
president
from
removing
Trump’s
cronies
from
these
agencies
in
a
few
years.
Allow
“likely
to
succeed
on
the
merits”
to
guide
lower
courts
for
now,
while
allowing
a
future
conservative
majority
to
respond
“well,
we
never
technically
overruled
that
precedent!”
down
the
road.
And,
to
borrow
from
Scooby-Doo,
they
would’ve
gotten
away
with
it
if
it
weren’t
for
those
pesky,
incompetent
administration
officials.
Rather
than
leave
well
enough
alone
and
let
the
Fed
continue
to
buttress
the
economy
against
the
1970s-style
stagflation
brought
on
by
Trump’s
economic
policy,
they
had
to
force
the
Supreme
Court’s
hand.
That
half-assed
Fed
carveout
didn’t
deter
the
administration
and
now
they’ll
have
to
address
the
case
head
on.
Whatever
they
decide,
they’re
going
to
put
it
on
the
books
and
be
forced
to
deal
with
it
when
Democrats
take
advantage
of
the
new
precedent.
Make
no
mistake,
this
majority
is
more
than
comfortable
with
naked
hypocrisy,
but
they
resent
having
to
make
it
so
obvious.
Joe
Patrice is
a
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Like
A
Lawyer.
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