Houston I’ve joked for years with comrades and friends about how much of our lives and careers, we’ve practiced law without a license. In organizing unions and community groups, we’re always looking for handles in rules and regulations, little opportunities that might be bent with pressure to favor our constituency, even if unintended. Many of us have been defamed in meetings with officials and even our own membership by being mistaken for lawyers, which we’ve tried to deny or laugh off, even while taking the comment as an insult. All of us have made the case that justice is not about the law, but about money and power, even as we’ve continued to organize people to beat their fists against these artificial, so-called legal walls.
Now with the expose’ of secret memos from a decade ago that created the US Supreme Court’s “shadow docket,” it turns out that we were righter than we ever might have suspected, given the revelation that just as we always suspected, concerns about money and power were more important to many of them than the laws they were supposed to protect and procedures that were designed to guide them. Just like us, they were glad to practice law without a license, and more than happy not to have to try to explain if there were any laws that guided and informed their opinions, which is the whole point of the shadow docket.
Just a reminder, though now this has become somewhat routine. This docket consists of unsigned decisions that are rendered from on high without any explanation of the rhyme or reasons that compelled them. The memos between justices and John Roberts, the Chief Justice for many years, indicate that such a docket serves its purpose when there may not be any legal precedent or justification. In some cases, they have acted preemptively before any lower courts had acted or any arguments or briefs were exchanged. In others, they have bypassed appeals courts in order to act unilaterally, when empowered by their conservative majority.
These memos and reports seem to point to Roberts’ clashes with former President Obama. In the first unprecedented debut of this docket, Roberts thought it would cost utility companies and others too much money to abide by an Obama order to install scrubbers to reduce air pollution, so he “bulldozed” the other judges to create a majority to stay the order and the EPA enforcement. The regulations were six years from implementation and many companies had already acted to abide by them, yet he rationalized a crisis partially by erroneously claiming the EPA was trying to go around court orders, simply based on a quote from the administrator that some companies had already moved to protect the environment. The memos indicate that justices were acting based on newspaper reports, blog postings, and their philosophical commitments to, dare I say, money and power, with the law and precedent of thorough debate, reasoned argument, and explicated decisions, the least of their concerns. Roberts and the majority were simply politicians and corporate toadies who were allowed to wear robes in public.
Like I said, how does that make them different than the rest of us. We may not have licenses, but we have opinions, too, many of them very different than the current court’s majority. When I say I’m practicing without a license, I’m just being honest about the whole affair. In the shadow docket when they, Roman gladiator style, simply raise their thumb up or down, killing an case or allowing it to go forward, without argument or explanation, and throwing the rock, while hiding the hand, how is that excusable.
When the Court’s majority sees its role as simply protecting money and power, the notion that there is a balance of power between the executive, legislature, and courts is pure fiction. Pundits often claim that Chief Justice Roberts is an institutionalist and most concerned about protecting the reputation of the court. These memos simply put egg on the faces of any making that claim, since Roberts and his cronies are revealed as craven, destroying any semblance of confidence anyone might hope for in this court and its process.
The decisions might not change, but we can only hope that these revelations put a stake in the heart of the shadow docket.