That it is five justices instead of six is notable because Chief Justice John Roberts was not in the majority. What’s even more notable is that Roberts signed onto Justice Elena Kagan’s dissent, blasting the court’s majority for using the shadow docket to issue a momentous decision on the flimsiest of grounds. “The request for a stay rests on simple assertions—on conjectures, unsupported by any present-day evidence, about what States will now feel free to do,” Kagan wrote.
That the court issued this stay—when the applicants showed no harm and there was no “emergency” that required the Supreme Court to intervene—shows the “Court goes astray,” Kagan wrote. “It
provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required.” The court just spoiled the case in the appeals process. It just told the lower court what it is going to do when the case ultimately reaches it.
“That renders the Court’s emergency docket not for emergencies at all,” Kagan says. “The docket becomes only another place for merits determinations—except made without full briefing and argument.”
What is so significant is that this is the first instance of Roberts opposing the tactic. “Although Chief Justice Roberts has joined the Democratic appointees in prior shadow docket dissents (Roman Catholic Diocese; Tandon; SB8), this is the first time he’s joined an opinion criticizing the majority for abusing what Kagan here calls ‘the emergency docket,’” Stephen Vladeck, a University of Texas law professor, tweeted.
In fact, he told The Washington Post, “This is the ninth time that Chief Justice Roberts has publicly been on the short side of a 5-4 ruling since Justice Barrett’s confirmation. … Seven of the nine have been from shadow docket rulings. This is the first time, though, that he’s endorsed criticism of the shadow docket itself.”
Return to Kagans’ dissent: The emergency docket, the shadow docket, “becomes only another place for merits determination—except without full briefing and argument.” That’s a remarkable departure for the court. It flies in the face of Barrett’s assertion that the majority is carefully weighing the cases before it, reasoning through the process.
The fact that Roberts, the conservative chief justice, signed onto Kagan’s dissent criticizing the majority proves one thing: The court’s legitimacy isn’t just in question, it’s lost. If the institution is going to be saved, it has to be wrested from the control of the extremist ideologues. It has to be expanded.