The Supreme Court has already puts its thumb on the scales for Donald Trump and Republicans in this election through unsigned orders on their "shadow docket," ruling on everything from absentee voting to felon disenfranchisement in the states. What's particularly disturbing about it, court watchers say, is the lack of transparency. They're not "ruling" with explanatory text. They're just orders.
“This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” Nicholas Stephanopoulos, a law professor at Harvard, told The New York Times. “If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions.” These decisions—at least nine of them—come from emergency applications from states since April seeking to settle election disputes. They have been considered and issued without any oral arguments, and issued quickly from the "shadow docket" as opposed to the court's regular docket, which comprises cases that have reached the court through extensive lower court consideration and are accepted on their merits.
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The term “shadow docket” was coined by University of Chicago law professor William Baude in a article written in 2015. It’s defined as "a range of orders and summary decisions that defy [the court's] normal procedural regularity." These are orders often handed down with no explanation from the majority. And they have "exploded," law professor Steve Vladeck writes, in the Trump years. "Three and a half years into the Trump administration, the solicitor general has sought emergency relief—to stay a lower-court ruling or lift a lower-court stay—on 36 separate occasions, including 14 alone during the October 2019 term," Vladeck explains. "That’s in contrast to the previous 16 years—under Presidents George W. Bush and Barack Obama—when the solicitor general sought such relief eight times, or once every other year."
The Trump administration and the Roberts Court have teamed up to fast-track Trump's agenda, and it's "produced more divisions" on the court, Vladeck writes. "In the 22 cases in which the court has granted at least partial relief to the government, at least two justices have publicly noted dissents 17 times, and nine of the orders have publicly been 5-4." Shadow docket decisions don't usually reflect the vote count—not unless one of the dissenting four justices publicly notes their dissent, and dissenting judges are increasingly publicizing them. Probably because they're trying to signal that the court is in real partisan crisis.
One of those dissenting justices increasingly speaking out is Sonia Sotomayor, who warned a year ago in response to an asylum shadow docket case that the court's intervention to grant a stay pending appeal "should be an 'extraordinary' act. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. … Not long ago, the Court resisted the shortcut the Government now invites. I regret that my colleagues have not exercised the same restraint here." The case was the Supreme Court overruling a lower court's order block the Trump administration's policy preventing many Central American migrants from trying to get asylum in the U.S.
The Supreme Court has been helping Trump subvert the normal path of jurisprudence to enact his worst policies and doing it in the shadows. And now with these election cases, they're trying to help Trump stay in office. As the Times' Adam Liptak notes, "Republicans tend to win" in this recent rash of elections cases the court has rushed. Putting Amy Coney Barrett on that court gives Trump one more justice who wouldn't be bothered at all by using her supreme position to thwart the will of the people and find a way to hand the election to him.
Which means there can’t be any question on Nov. 4 that Trump has lost, and lost in a popular and electoral landslide.
