Fun fact for this week’s cheap hook. Charles Ingalls, “Pa” in Little House on the Prairie, was in real life, a justice of the peace. ln Pioneer Girl, the account upon which the fictional series is based, Laura Ingalls Wilder wrote about her father presiding over local judicial proceedings in their living room in De Smet, Dakota Territory (now South Dakota). This humble judicial presence wasn’t isolated to the territories.
At the helm of the judicial branch of the U.S. government, which is supposed to interpret the laws written by the legislative branch and enforced by the executive branch, sits the Supreme Court, which originally had only six justices and held sessions in windowless chambers from 1819 to 1860. The Supreme Court took such a backseat in government operations from 1791, when it heard its first case, until almost 1900 that it didn’t warrant its own building until 1935.
Now nine justices sit on the Supreme Court and it hears nearly 75 cases annually, about 40 “merits” based cases where the whole court will hear arguments and write decisions. But what about those other 35 or so cases? Between these emergency cases and the increasing number of “merits” cases that the public considers political, it’s worth learning about the Court and evaluating whether the three branches of government are operating within their boundaries, or superseding them for some unhealthy reasons. If that’s the case, why?
In his book “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” historian Stephen Vladeck calls attention to a potential imbalance in the role of the judicial branch. When initially coined, the term “shadow docket” simply referred to the many emergency cases kicked up to the Supreme Court, most often stays of execution, which exploded the Court’s workload after the U.S. resumed state-sanctioned executions — capital punishment — in 1976.
To best understand this, it’s helpful to know that the Supreme Court accepts two kinds of cases — merits cases, heard by the entire court, with majority decisions and dissenting statements — and other cases, which Vladeck defines as “the negative space in which the court does everything else.” One hundred or so years ago, Vladeck reports, the Supreme Court operated at the behest of Congress, “The court heard every case Congress told it to and no case Congress told it not to.” In short, Congress “dictated what the court did. Congress would use its power over the court to intimidate and leverage the court all the time.” For instance, it canceled the Supreme Court’s entire 1802 sitting because the Jeffersonians were mad at the Federalists and removed the court’s jurisdiction in cases it didn’t want the Court to decide, which controlled its workload. When that started to change in the 1880s, the Court had over 1,800 cases in front of it.
So the Court gets the power called “writ of certiorari” that allows it to control and balance its caseload, which as Vladeck explains, “begets the shadow docket because that creates this first-step process where the court is going to cull all of the appeals that come before it in ways that it’s not going to explain.” It didn’t happen fast. From 1925 to the early 1980s, a lot of the cases were mandatory still. From the 1940s - 1960s, decisions were largely in step with public opinion and Congress still had sway to push back on the Court’s discretion. In that era, a single justice might hear arguments on an emergency case in his or her chamber, “but no one ever confused a single judge’s decision as a matter of the full court’s majority opinion.”
The impact of how the Court operated stayed limited through the 1960s, when the court would maybe get 3 or 4 emergency applications a year in death penalty cases — the U.S. suspended capital punishment from 1972-76, then in 1983, The Court got an overwhelming 83 appeals. This, says Vladeck, is when the Court’s behavior changes.
It stops having individual justices resolve most applications and starts a procedure where, if a case is remotely divisive or if there’s a chance that any two colleagues might disagree, justices are supposed to refer the application to the full court. So we have a full-court decision instead of a single-justice decision — they can still decide some cases with a single judge — either way, they’re still not going to explain themselves.”
It wasn’t stays of execution but decisions in challenges with larger implications that the Court’s quiet decision-making power supersedes its boundaries. Over the 16 years of Bush Jr. and Obama, the executive branch requested eight emergency relief decisions. Then, Trump asked for 41 interventions from 2016 to 2020 on decisions about a travel ban, the border wall and the transgender military ban followed by issues related to COVID and abortion. Instead of Congress handling decisions, the Court made calls on legislation. Each of these decisions should have been the responsibility of Congress, mandated to follow the will of the people they represent. Instead, the judicial branch uses the writ of certiorari procedure, and to amplify matters, the executive branch leans on executive orders when Congress deadlocks over issues.
Here’s the truth of systems: when one begins to fail, others begin to overcompensate. Whether it’s a national crisis like the Great Depression or the years when Congress stalemates and resorts to gamesmanship, the executive branch has resorted to action by executive order. Statista shows that FDR averaged 307 such executive orders per year, followed by Woodrow Wilson who governed during World War I. Calvin Coolidge is a cool third, then Teddy Roosevelt, Truman (World War II), Taft, Harding, Eisenhower, Reagan, Clinton, Nixon, Johnson, Carter, George W. Bush, Obama, Trump, Grant (post Civil War) and JFK, in that order.
It’s fair to point out that no president used anywhere the number of executive orders near what FDR used, but when one branch compensates for another, it’s a symptom of dysfunction.
The two-party Congressional system has deadlocked increasingly over even procedural legislation like national budget bills. Some representatives take an “all or nothing” idealistic approach to legislating, instead of a democratic compromise approach.
Maybe those elected officials feel morally obligated to buck public opinion over issues like capital punishment or the Second Amendment, perhaps they feel ethically bound to remain loyal to their affiliations, but when they fail to legislate, the executive branch is pressured to take action. It’s inevitable. The president is a figurehead, a concentrated point of attention, a president may feel the tyranny of opinion and take action. Now, it seems the Supreme Court has been drawn into this.
What’s to be done? Perhaps we Americans are at an inflection point. We need to call on Congress to take action and acknowledge that democracy doesn’t operate well in a winner-take-all approach.
By the way, one can monitor each of these lesser cases at http://shadowdocket.net/, but not all of these last-moment decisions are appeals to save a life — even fewer are handwritten by informed and desperate humans as Carlos Martinez did on Oct. 4. Primary source information is a powerful tool.
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