This isn’t the first warning about the court’s legitimacy we’ve heard from Kagan. In fact, in one instance, Roberts agreed with her. That followed a shadow docket decision handed down by the five conservatives on a district court decision that vacated a Trump environmental rule that limits states’ ability to block projects that could pollute rivers and streams pending an appeals court hearing.
Kagan blasted the majority for using the secret proceeding to issue such a momentous decision, and Roberts signed on to her dissent. “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. She pointed out that the applicants showed no harm and there was no “emergency” that required the Supreme Court to intervene, writing that the “Court goes astray.”
“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 spoiled the case in the appeals process by projecting to the lower court how it was going to rule when the case ultimately reaches it. “That renders the Court’s emergency docket not for emergencies at all,” Kagan wrote. “The docket becomes only another place for merits determinations—except made without full briefing and argument.”
Roberts agreed, apparently, since he signed the dissent.
It wasn’t the first time Roberts was with the liberals on a dissent in a shadow docket decision, one that was easily as momentous: allowing the Texas abortion ban to stand months before issuing the ruling that struck down Roe.
“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,” Kagan wrote. “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 submissions, 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.”
Behind closed doors at the court, Roberts seemed to agree with Kagan on these issues since he signed on to the dissents. Speaking to a bunch of judges, though, he sings a different tune. That’s disquieting for a lot of reasons, but mostly because we might seeing the end of Roberts as a swing vote on the court from here on out.
He’s listened to Kagan before—perhaps this is her trying to get him to listen again.
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