Hypocritically, The Origin Of The Supreme Court’s ‘Shadow Docket’ Was An Attempt To Curb Executive Power

I originally began this headline with the word “ironically.” But it would only be ironic if it wasn’t by design. Irony suggests something slightly out of the control of the principal figures resulted in something somewhat unexpected.

That isn’t the case here. This was by design. The New York Times has obtained the behind-the-scenes memos issued by Supreme Court justices back in 2016, as they discussed responding to an “emergency” appeal related to questionably authorized application of the Environmental Protection Agency’s powers by then-president Barack Obama.

Here’s how that went, once the Supreme Court was finished with its backroom “discussion:”

For two centuries, the court had generally handled major cases at a stately pace that encouraged care and deliberation, relying on written briefs, oral arguments and in-person discussions. The justices composed detailed opinions that explained their thinking to the public and rendered judgment only after other courts had weighed in.

But this time, the justices were sprinting to block a major presidential initiative. By a 5-to-4 vote along partisan lines, the order halted President Barack Obama’s Clean Power Plan, his signature environmental policy. They acted before any other court had addressed the plan’s lawfulness. The decision consisted of only legal boilerplate, without a word of reasoning.

The Supreme Court never bothered to hear the case on its merits. The emergency appeal never resulted in the appellants being asked to submit briefings or engage in oral arguments. Instead, the 5-4 conservative majority decided to block Obama’s “Power Plan” via a single paragraph that made it clear Chief Justice John Roberts had not only pushed for this behind-the-scenes handling of the case, but had gotten what he wanted from the other justices.

But the internal discussion was anything but indicative of a majority view. John Roberts — citing no case law (but referring to TV interviews and EPA website posts) — claimed Obama was abusing his executive power by putting this plan into action. He also claimed this “emergency” ruling needed to be issued prior to the scheduled court recess because if SCOTUS failed to do so, immediate irreparable harm would be the result.

[Justice Roberts] argued that the Obama plan, which aimed to regulate coal-fired plants, was “the most expensive regulation ever imposed on the power sector,” and too big, costly and consequential for the court not to act immediately.

This faux concern about immediate harm was contradicted (far more immediately) by the dissenting justices, beginning with Justice Stephen Breyer, who pointed out what the plan actually demanded in terms of timelines:

Justice Breyer responded later that day to the chief’s memo but did not address all its points. Such stays were unusual, he wrote, stating his objections mildly.

He skipped over the question of whether the plan was lawful, asking only: Why the rush? The circuit court had already set a date to hear the case in June. The first deadline for power plants to reduce their emissions was six years away; full compliance was not required until 2030. That was plenty of time for the case to play out through the legal system.

John Roberts didn’t care. He wrote back, claiming the burdens placed on the power industry were too onerous. Why, if the plan were allowed to be enacted, Roberts said, companies across the entire nation might be expected to spend $480 billion over the next 15 years. To put that in context, the electric sector of the US power industry has made over $200 billion in profit over the last five years alone. Had this plan been allowed to move forward, states and utilities would have easily absorbed the cost of compliance. More likely, they would have just passed on the cost of compliance to customers, ensuring their profit margins remained where their investors preferred them to be.

Roberts claimed that without emergency back-door action, these utilities were “highly unlikely to survive.” Elena Kagan responded by pointing out that even if that might be the case, the nation’s top court was obligated to hear the case in court and rule on the merits, rather than issue a non-opinion that said nothing more than the majority was unwilling to allow Obama’s alleged executive power overreach.

That prompted Justice Alito to pitch in his expected two cents, which was this:

Echoing the chief justice’s sense of insult and suspicion about the Obama administration, he wrote that the E.P.A. appeared to be trying to render the court irrelevant.

And that, of course, is a sticking point for Alito, who has definitely done everything he can to prevent the Trump administration from… um… rendering the court irrelevant.

The context matters. First, this was a conservative majority trying to dump a “liberal” plan to make the US more reliant on clean energy because conservatives generally hate clean energy and it definitely looked like the Democratic Party might continue to hang on to this executive power when the only GOP candidate of interest was a pussy-grabbing loudmouth with zero political experience.

Second, another justice decided to exit the mortal plane at an inopportune time for the conservative majority:

The following Saturday morning, Justice Scalia failed to appear for breakfast at a weekend hunting retreat in Texas. Hours later he was found dead. As far as the public record reveals, the vote on the Clean Power Plan was his last. Had the court not acted with exceptional speed, the case would have ended in a deadlock and the Obama plan would have stayed in place.

The current makeup of the Supreme Court — as well as its newfound deference to executive power and excessive utilization of the “shadow docket” — can be traced back to these two events. The GOP managed to stonewall Obama’s Supreme Court appointee, allowing Trump to stack the court. And with the court now heavily tilted toward whatever it is that passes for “conservatism” these days (mostly white Christian nationalism, peppered heavily with president-as-king assertions), the shadow docket allows the justices who once pretended to be concerned about reining in executive power to allow this power to expand to the limits of its imagination.

Since this moment — now exposed by the publication of previously secret memos — two-thirds of the Supreme Court are now Constitutional Crisis hotline operators who refuse to answer any call that isn’t coming from the White House. Should the regime change following the next presidential election, we can only expect this hypocrisy to continue.