The Supreme Court Turns Out the Lights on States Rights

What's going on with the "shadow docket"?

For months I’ve suffered the thought that the mission of our current Supreme Court was to help states rights overshadow the federal government. When President Reagan said, “Government is the problem”, he meant the federal government. So what’s going on?

Cartoon by Pat Bagley, Salt Lake Tribune, 2/3/2011

My impression is that today’s Supreme Court has favored states rights. Some of our Supreme Court Justices have Federalist Society ties. State legislatures have become more reliably conservative, dues in part to extreme gerrymandering. And as the Court has recently acquired a solidly conservative majority, it suddenly seems beyond accountability.

The “shadow docket” is a popular name for the Court’s emergency docket. It allows the Justices to make decisions with no publicized discussion and no yea or nay signatures. How then are we to know if they were good arguments? What were the judges thinking, and which ones said what? We have no idea.

For the second time I’ve noticed Heather Cox Richardson has mentioned that the shadow docket was used for a recent Supreme Court decision that actually limited states rights.

Why the sudden switch against states rights?

It turns out there’s a double negative. The Court majority has ruled to limit states from stopping big development that might hurt the environment. This would challenge any state laws that might still be protecting the environment from big developers.

But we do have a statement of concern from some of the Justices about the Court’s increasing use of the shadow, or emergency, docket.

Justice Elena Kagan, joined in her dissent by Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor, said the case did not belong on the emergency docket because the petitioners had not identified any threat of immediate harm.

By granting relief anyway, the majority “signals its view of the merits” and “renders the Court’s emergency docket not for emergencies at all,” Kagan wrote.

This shadow over one of our three branches of federal government is something to worry about.

States Rights cartoon: Pat Bagley, Salt Lake Tribune 2/3/2011

Shadow Docket cartoon

Federalist Society belief in states rights

“Some of our Supreme Court Justices have Federalist Society ties.”

Heather Cox Richardson first mentions this “shadow docket” case: The American Petroleum Institute, the Interstate National Gas Association of America, and the National Hydropower Association all applauded the decision."

Heather Cox Richardson again mentions this case: “On April 6, five Supreme Court justices agreed to reinstate a Trump-era rule that limits the ability of states to block projects that pollute their rivers and streams.”

Quote beginning, “Justice Elena Kagen…”