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      The Shadow Docket review: how the US supreme court keeps sunlight out

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      Only a quarter of Americans have confidence in the supreme court. As the country strives to navigate a post-Roe v Wade world, the right to abortion removed, regard for the right wing of the court is scarcer still. Justices Clarence Thomas, Brett Kavanaugh, Amy Coney Barrett and Samuel Alito have negative ratings with the public. Kavanaugh and Thomas are underwater by double-digits.Being perceived as a predator – Kavanaugh – engenders disdain or worse. Taking undisclosed gifts from a Republican mega-donor and being married to an election-denier who trades on her spouse’s judgeship – Thomas – triggers demands for renewed oversight.When Ginni Thomas visited the White House “you knew your day was wrecked”, said a senior Trump aide, according to the Daily Beast. This week came news that Clarence Thomas and Alito have not yet filed their financial disclosures and have received extensions. The circus rumbles on.Against such a backdrop, Stephen Vladeck, a professor at the University of Texas law school and CNN commentator, delivers The Shadow Docket.Under the subtitle “How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic”, Vladeck offers a well-researched indictment of how the supreme court has grown to rely on using procedural orders rather than rulings to make new law, escaping scrutiny while delivering major victories to the political right.The term “shadow docket” was coined in 2015, by William Baude, a University of Chicago law professor. In Vladeck’s words, it was “a catch-all for a body of the supreme court’s work that was, to that point, receiving virtually no academic or public attention”.Strictly speaking, the shadow docket is a vehicle for addressing issues that demand urgent attention, usually injunctions and orders to preserve the status quo. But it has morphed into a fraught topic. The court has adjudicated cases involving abortion, voting rights and Covid policy by means of the shadow docket. The docket also became the prime location for the elevation and reordering of religious rights, under the free exercise clause of the first amendment.Almost by definition, docket rulings are sparse. They are often unaccompanied by reasoning, Vladeck writes. “Invariably”, they lack “identification of how (or how many of) the justices voted and can be handed down at all times of day or, as has increasingly become the norm, in the middle of the night.”Vladeck knows his subject. In September 2021, he testified to the Senate judiciary committee about “Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket”.He has also said: “What’s remarkable is that the court repeatedly acquiesced and acquiesced [to the right] … and almost always without any explanation.”On the page, he observes that few such Trumpian wins have resulted in actual binding precedents. Rather, shadow docket triumphs mainly satisfy political needs. Vladeck credits Noel Francisco, the solicitor general under Trump, and his deputy, for hatching the legal strategy that for example salvaged the Muslim travel ban and efforts to “build the wall” on the southern border without express congressional appropriation.SB-8, the Texas six-week abortion ban, provides a stark illustration of how the process continues to work. In September 2021, the supreme court did not formally opine on the constitutionality of the draconian Texas law. Instead, in an unsigned shadow docket order, a bare majority allowed the statute to slide into effect. It read:
      The application for injunctive relief or, in the alternative, to vacate stays of the district court proceedings presented to Justice Alito and by him referred to the court is denied.”
      The text made no mention of Roe, the 1973 ruling then in place, safeguarding federal abortion rights. But everyone could see what was coming.John Roberts, the chief justice, a George W Bush appointee, would have stopped the Texas law from going into effect, pending a decision on the merits. The statutory rubric was “unusual” and “unprecedented”, he wrote. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large.”Months later, Roberts voted with the three liberals to save Roe. No matter. The court struck it down.Not everyone welcomes the attention Vladeck and others have brought to the use of the shadow docket. Alito publicly twitted the media for portraying it as something “sinister”, and depicting the court as “having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways”.On the other hand, Thomas’s friendship with the mega-donor Harlan Crowe should surely give any observer clear reason to pause.Elsewhere, Coney Barrett has denied that the court engages in results-oriented decision-making, urging an audience at the Reagan Library in April 2022 to “read the opinion” instead.Vladeck is unswayed: “It’s essential context to point out that, just two days later, she joined a 5-4 shadow docket ruling with no opinion for the public to read. It’s all part of the story – or, at least, it should be.”“The rise of the shadow docket … has negative effects on public perception of the court – and of the perceived legitimacy of the justices’ work,” Vladeck writes.The legitimacy of the court erodes.The Shadow Docket is comprehensive and sensitive to nuance, written for concerned audiences. Members of Congress, the bar, the press and engaged non-lawyers come to mind. Vladeck covers more than two centuries of legal history, together with the transformation of the court into a visibly co-equal branch of government.On Thursday night, news broke of 37 federal criminal counts against Donald Trump. The next election is 17 months away. The legitimacy and resilience of all US institutions stands to be tested like never before.
      The Shadow Docket is published in the US by Hachette More

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      Donald Trump attempts to cut sexual abuse damages for E Jean Carroll to $1m – as it happened

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      From 2h agoDonald Trump has asked a federal court in New York to slash the $5m penalty awarded against him in the sexual assault and defamation civil case won by writer E Jean Carroll down to just $1m – or grant him a new trial.The case went in Carroll’s favor last month when a jury decided that Trump had sexually abused and defamed her.Trump’s legal team has argued to the court that the damages awarded against him are excessive and the court should either slash them or allow a new trial.Reuters adds:
      The lawyers noted in a written submission that a Manhattan federal court jury last month rejected a rape claim made by the writer, E. Jean Carroll, concluding instead that she had been sexually abused in spring 1996 in the store’s dressing room.
      “Such abuse could have included groping of Plaintiff’s breasts through clothing, or similar conduct, which is a far cry from rape,” the lawyers wrote.
      They said the $2 million granted by the jury on a sexual abuse claim was “grossly excessive” and another $2.7 million issued for compensatory defamation damages was “based upon pure speculation.”
      The award should consist of no more than $400,000 for sex abuse, no more than $100,000 for defamation and $368,000 or less for the cost of a campaign to repair Carroll‘s reputation, the lawyers wrote.
      If a judge does not grant the suggested reduction in the award, then he should permit a new trial on damages, they said.
      Roberta Kaplan, Carroll’s attorney, said in an emailed statement that the arguments by Trump’s lawyers were frivolous.
      She said the unanimous jury had concluded that Trump sexually assaulted Carroll and then defamed her “by lying about her with hatred, ill-will, or spite.”
      “This time, Trump will not be able to escape the consequences of his actions,” Kaplan said.
      Trump may still face a second defamation trial resulting from another lawsuit Carroll filed against him. That case has been delayed with appeals as the U.S. Justice Department sought to substitute the United States as the defendant in place of Trump. Government lawyers say Trump can’t be held liable for the comments he made as president.
      Hello US politics blog readers, it’s been an eventful day in US political news. We’re closing this blog now and will start afresh on Friday. We have stand alone stories on some of the biggest news of the day, links in the bullet points below.Here’s where things stand:
      Donald Trump has asked a federal court in New York to slash the $5m penalty awarded against him in the sexual assault and defamation civil case won by writer E Jean Carroll down to just $1m – or grant him a new trial.
      The White House has had to postpone a party due for this evening, where thousands of lesbian, gay, bisexual, transgender, queer-plus (LGBTQ+) people were invited to a celebration and, essentially, a political defiance event. Reuters further reports that Biden said violence against LGBTQ+ people in the United States is on the rise and anti-LGBTQ rhetoric is an appeal to fear that is “unjustified” and “ugly.”
      Hardline Republicans have effectively paralyzed the chamber because they’re unhappy at speaker Kevin McCarthy over the deal with Democrats that resolved the problem with the US debt ceiling. The spat appears to have widened to envelop No 2 House Republican Steve Scalise, who appears unhappy with the speaker.
      The US supreme court ruled that Alabama discriminated against Black voters when it drew its seven congressional districts last year. The ruling in Allen v Milligan means that Alabama will have to draw its congressional map afresh to include a second majority-Black district.
      Donald Trump has asked a federal court in New York to slash the $5m penalty awarded against him in the sexual assault and defamation civil case won by writer E Jean Carroll down to just $1m – or grant him a new trial.The case went in Carroll’s favor last month when a jury decided that Trump had sexually abused and defamed her.Trump’s legal team has argued to the court that the damages awarded against him are excessive and the court should either slash them or allow a new trial.Reuters adds:
      The lawyers noted in a written submission that a Manhattan federal court jury last month rejected a rape claim made by the writer, E. Jean Carroll, concluding instead that she had been sexually abused in spring 1996 in the store’s dressing room.
      “Such abuse could have included groping of Plaintiff’s breasts through clothing, or similar conduct, which is a far cry from rape,” the lawyers wrote.
      They said the $2 million granted by the jury on a sexual abuse claim was “grossly excessive” and another $2.7 million issued for compensatory defamation damages was “based upon pure speculation.”
      The award should consist of no more than $400,000 for sex abuse, no more than $100,000 for defamation and $368,000 or less for the cost of a campaign to repair Carroll‘s reputation, the lawyers wrote.
      If a judge does not grant the suggested reduction in the award, then he should permit a new trial on damages, they said.
      Roberta Kaplan, Carroll’s attorney, said in an emailed statement that the arguments by Trump’s lawyers were frivolous.
      She said the unanimous jury had concluded that Trump sexually assaulted Carroll and then defamed her “by lying about her with hatred, ill-will, or spite.”
      “This time, Trump will not be able to escape the consequences of his actions,” Kaplan said.
      Trump may still face a second defamation trial resulting from another lawsuit Carroll filed against him. That case has been delayed with appeals as the U.S. Justice Department sought to substitute the United States as the defendant in place of Trump. Government lawyers say Trump can’t be held liable for the comments he made as president.
      Here’s New York civil rights campaigner and politician Al Sharpton on the supreme court decision.
      This was an unexpected decision that hopefully means the Supreme Court’s era of disenfranchising voters is coming to an end.
      Alabama’s gerrymandering policies were quintessential, modern-day Jim Crow tactics to suppress Black voters in the state. That you had two conservative-leaning judges rule against the state all but confirms that.
      This is a major step forward in the fight to protect voting rights. Let’s not forget that we’re in this mess because the Supreme Court took a sledgehammer to the Voting Rights Act a decade ago when it ruled on Shelby v. Holder.
      States essentially got the green light to recut lines, purge voter rolls, and take any other steps to keep Black and Brown Americans from showing up at the polls. Today’s ruling only goes to show why Congress has a moral imperative to pass the John Lewis Voting Rights Act this year.
      We have been promised since we lost John Lewis three years ago, amid historic protests against racial injustice, and we will not wait until next year when lawmakers need our vote again. On August 26th, we will gather for the 60th Anniversary of the March on Washington to send a clear message that this legislation must pass now.”
      US attorney general Merrick Garland has issued a response to the supreme court’s decision on Alabama and also a fresh call to the US Congress to pass some of the voting rights legislation that Joe Biden and Kamala Harris campaigned on in 2020 but is growing mildew on Capitol Hill.Garland said:
      Today’s decision rejects efforts to further erode fundamental voting rights protections, and preserves the principle that in the United States, all eligible voters must be able to exercise their constitutional right to vote free from discrimination based on their race.
      The right to vote is the cornerstone of our democracy, the right from which all other rights ultimately flow.
      Over the past two years, the Justice Department has rededicated its resources to enforcing federal voting rights protections. We will continue to use every authority we have left to defend voting rights. But that is not enough. We urge Congress to act to provide the Department with important authorities it needs to protect the voting rights of every American.”
      Here’s Janai Nelson, president and director- counsel of the NAACP Legal Defense Fund (LDF), on the Scotus decision.There is praise to go around.On Deuel Ross, racial justice attorney at the Legal Defense Fund:More reaction now to the surprise decision by the US supreme court earlier to defend the Voting Rights Act in a case involving Alabama’s electoral map.The American Civil Liberties Union (ACLU) has released a statement thus, which includes some useful background:
      The U.S. Supreme Court today ruled in Allen v. Milligan in favor of Black voters who challenged Alabama’s 2021-enacted congressional map for violating the Voting Rights Act of 1965 for diluting Black political power, affirming the district court’s order that Alabama redraw its congressional map.
      By packing and cracking the historic Black Belt community, the map passed by the state legislature allowed Black voters an opportunity to elect candidates of their choice in only one of seven districts even though they make up 27 percent percent of the voting-age population. In its decision, the court also affirmed that under Section 2 of the VRA, race can be used in the redistricting process to provide equal opportunities to communities of color and ensure they are not packed and cracked in a way that impermissibly weakens their voting strength.
      The case was brought in November 2021 on behalf of Evan Milligan, Khadidah Stone, Letetia Jackson, Shalela Dowdy, Greater Birmingham Ministries, and the Alabama State Conference of the NAACP who are represented by the Legal Defense Fund (LDF), American Civil Liberties Union, ACLU of Alabama, Hogan Lovells LLP, and Wiggins, Childs, Pantazis, Fisher & Goldfarb. It was argued before the court on Oct. 4, 2022.
      “This decision is a crucial win against the continued onslaught of attacks on voting rights,” said LDF senior counsel Deuel Ross, who argued the case before the court in October. “Alabama attempted to rewrite federal law by saying race had no place in redistricting. But because of the state’s sordid and well-documented history of racial discrimination, race must be used to remedy that past and ensure communities of color are not boxed out of the electoral process. While the Voting Rights Act and other key protections against discriminatory voting laws have been weakened in recent years and states continue to pass provisions to disenfranchise Black voters, today’s decision is a recognition of Section 2’s purpose to prevent voting discrimination and the very basic right to a fair shot.”
      Davin Rosborough, senior staff attorney with the ACLU’s Voting Rights Project, said, “The Supreme Court rejected the Orwellian idea that it’s inappropriate to consider race in determining whether racial discrimination led to the creation of illegal maps. This ruling is a huge victory for Black Alabamians.”
      It’s been a busy morning in US politics and there will be plenty more developments on subjects ranging from Trump and E Jean Carroll to the supreme court’s surprise ruling on Alabama’s biased voting maps.Here’s where things stand:
      Donald Trump has asked for a new trial in the civil case brought by author E Jean Carroll, in which a Manhattan jury last month found the former US president liable for sexually abusing and defaming the writer and awarded her $5m in damages.
      The White House has had to postpone a party due for this evening, where thousands of lesbian, gay, bisexual, transgender, queer-plus (LGBTQ+) people were invited to a celebration and, essentially, a political defiance event.
      Hardline Republicans have effectively paralyzed the chamber because they’re unhappy at speaker Kevin McCarthy over the deal with Democrats that resolved the problem with the US debt ceiling. The spat appears to have widened to envelop No 2 House Republican Steve Scalise, who appears unhappy with the speaker.
      The US supreme court ruled that Alabama discriminated against Black voters when it drew its seven congressional districts last year. The ruling in Allen v Milligan means that Alabama will have to draw its congressional map afresh to include a second majority-Black district.
      Another quick reminder that British prime minister Rishi Sunak and US president Joe Biden are about to hold a press conference at the White House.It’s beginning any moment and our London colleagues are glued to it. There’s a live feed and all the developments as they happen, via the UK politics blog, here.No sooner had a New York jury found for E Jean Carroll than Donald Trump verbally attacked her during a live town hall-style interview on CNN (the broadcast which was probably the penultimate nail in the coffin for departing CNN chair Chris Licht before the crushing Atlantic article).Carroll promptly went back to court to to demand “very substantial” additional damages from Trump for the disparaging remarks, filing an amended lawsuit seeking an additional $10m in compensatory damages – and more in punitive damages.During the town hall in New Hampshire the day after the 9 May verdict, Trump further and repeatedly demeaned Carroll and her experiences.Trump said her account of a sexual assault, in the case which he is appealing, was “fake” and a “made-up story” and referred to it as “hanky-panky”. He repeated past claims that he’d never met Carroll and considered her a “whack job”.The filing by Carroll the following week claimed Trump’s statements at the televised town hall “show the depth of his malice toward Carroll, since it is hard to imagine defamatory conduct that could possibly be more motivated by hatred, ill will or spite”.Now Trump wants a new trial.Last month a New York jury found that Donald Trump sexually abused the former advice columnist, E Jean Carroll, in one of New York City’s most upscale stores, in the changing room at Bergdorf Goodman on Fifth Avenue, 27 years ago.The verdict on 9 May, for the first time, essentially legally branded a former US president as a sexual predator. It was the result of a civil not criminal case, and the only legal sanction Trump faced was financial.At the time, my colleagues Chris McGreal and Martin Pengelly noted that: In explaining a finding of sexual abuse to the jury, the judge said it had two elements: that Trump subjected Carroll to sexual contact without consent by use of force, and that it was for the purpose of sexual gratification.The jury deliberated for less than three hours. It did not find Trump raped Carroll, but did find him liable for sexual abuse.It awarded about $5m in compensatory and punitive damages: about $2m on the sexual abuse count and close to $3m for defamation, for branding her a liar.In an interview the following day, Carroll said she was “overwhelmed with joy for the women in this country”.It would be staggering if Donald Trump succeeded in getting a new civil trial in the issues brought against him by E Jean Carroll, after she sued him for defamation and sexual abuse and won hands down after a brisk jury decision.But the former US president is having a go.Donald Trump has asked for a new trial in the civil case brought by author E Jean Carroll, in which a Manhattan jury last month found the former US president liable for sexually abusing and defaming the writer and awarded her $5m in damages, Reuters reports.This according to a new court filing. More on this asap.Smoke gets in your eyes. Sadly, the White House has had to postpone a party due for this evening at the White House, where thousands of lesbian, gay, bisexual, transgender, queer-plus (LGBTQ+) people were invited to a celebration and, essentially, a political defiance event at the White House.The smoky air drifting south from the Canadian wildfires that’s been causing havoc on the eastern seaboard and further inland has put paid to tonight’s party.BUT in better news, it is currently rescheduled for Saturday.NBC reports that the event was/is designed as:
      A high-profile show of support at a time when the community feels under attack like never before and the White House has little recourse to beat back a flood of state-level legislation against them.
      Biden is also announcing new initiatives to protect LGBTQ+ communities from attacks, help youth with mental health resources and homelessness and counter book bans, White House officials said.
      The event is a:
      Picnic featuring food, games, face painting and photos. Queen HD the DJ was handling the music; singer Betty Who was on tap to perform.
      Karine Jean-Pierre, the first openly gay White House press secretary, said Biden, Vice President Kamala Harris and their spouses are strong supporters of the LGBTQ+ community and think that having a celebration is an important way to “lift up” their accomplishments and contributions.
      She said LGBTQ+ people need to know that Biden “has their back” and “will continue to fight for them. And that’s the message that we want to make sure that gets out there.”
      FYI Harris is in the Bahamas today on business and is expected back in DC tonight. Biden’s meeting Rishi Sunak at the White House and holding a presser soon.You can follow all the latest developments on the Canadian wildfires and the smoke impact on the US in our dedicated live blog:There’s some context on the relationship between House speaker Kevin McCarthy and his chamber GOP No. 2, Steve Scalise, the House majority leader, from the Punchbowl report, prior to the hardliners’ spat now rippling out on Capitol Hill.The outlet points out that a captain having friction with his supposed wingman “is a tale as old as time in House leadership” and these two have known each other for decades.Punchbowl reports:
      The pair met as young College Republicans and their interactions have always been professional. But there’s no doubt some bad blood between the two men.
      Scalise considered running against McCarthy for Republican leader in 2019, but ultimately decided against it — something we cataloged at length in a book we wrote. And again, McCarthy tapped [Louisiana congressman Garrett] Graves and [North Carolina congressman Patrick] McHenry for the most sensitive negotiations of the last few months, leaving Scalise aside.
      Scalise said in the interview that McCarthy is still viable as speaker of the House. But the House majority leader noted repeatedly that there is “a lot of anger on a lot of sides of our conference.”
      An old article from Politico notes that McCarthy and Scalise’s “parallel rise” dates to the late 1990s. McCarthy was national chairman of the Young Republicans and Scalise was an up and coming Louisiana politician and their friendship developed from that time.British prime minister Rishi Sunak, from the Conservative Party, is in Washington DC, this week and is meeting right now with Joe Biden at the White House.The premier and the US president are due to hold a press conference at 1.30pm US east coast time. Our colleagues in London are focusing on this and will be covering it as it happens via the UK politics blog, with a live stream of the event.You can keep up with that blog here.Selma native and Alabama congresswoman Terri Sewell just hopped on the phone for a live interview with CNN on air to express her relief and delight about the supreme court decision on voting rights and the relevant district maps in her state.“This is so exciting, it’s really amazing … it’s an amazing victory for Alabama Black voters, for the Voting Rights Act, for democracy,” she said.She tweeted about a “historic victory”.Sewell said the ruling reflected the legacy of the long legacy of fighting for civil rights for Black voters in Alabama and elsewhere and she was “reeling” from the good surprise.“And to have the supreme court give us this huge win, it’s historic,” she told CNN.She noted this would have implications more widely and was a closely watched case by legislatures creating voting maps, especially in states such as North Carolina and Ohio. “Everyone is looking at this decision,” she said, adding “it will have a positive ripple effect.”She noted that the late civil rights activist, champion and congressman John Lewis “must be smiling” and that those who challenged Alabama’s discriminatory voting rights did was Lewis always encouraged people do to: “we got into some good trouble.”This is Sewell’s pinned tweet: More

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      Alabama discriminated against Black voters, US supreme court rules

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      Alabama discriminated against Black voters when it drew its seven congressional districts last year, the supreme court has ruled, a decision that is a major victory for the Voting Rights Act (VRA).The decision was 5-4, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the court’s three liberal justices in the opinion. Writing for the majority of the court, Roberts noted the court was rejecting Alabama’s effort to get it to rewrite its longstanding interpretation of section 2 of the Voting Rights Act, which outlaws voting practices that discriminate on the basis of race. The decision means that section 2 of the law, one of its last remaining powerful provisions, will remain intact.“The heart of these cases is not about the law as it exists. It is about Alabama’s attempt to remake our §2 jurisprudence anew,” Roberts wrote. “We find Alabama’s new approach to §2 compelling neither in theory nor in practice. We accordingly decline to recast our §2 case law as Alabama requests.”The decision was an unexpected outcome from Roberts and the court, both of whom have significantly hollowed out the Voting Rights Act in recent years. As a young lawyer in the justice department in the 1980s, Roberts argued for narrowing the interpretation of section 2. The court has rarely sided with voting rights litigants who allege voting discrimination.The decision in the case, Allen v Milligan, means that Alabama will have to draw its congressional map to include a second majority-Black district. Black voters currently comprise a majority of the voting age population in just one district, despite making up a quarter of the state’s population.“This decision is a crucial win against the continued onslaught of attacks on voting rights,” Deuel Ross, an attorney with the NAACP Legal Defense and Educational Fund who argued on behalf of the plaintiffs, said in a statement. “Alabama attempted to rewrite federal law by saying race had no place in redistricting. But because of the state’s sordid and well-documented history of racial discrimination, race must be used to remedy that past and ensure communities of color are not boxed out of the electoral process.”The ruling also is a boon to similar cases in Louisiana, Texas and Georgia, where litigants currently are suing to require the drawing of additional majority-minority districts. “This precedent also lays a foundation for fair map decisions in our other Section 2 cases,” said Marina Jenkins, the executive director of the National Redistricting Foundation, a Democratic-aligned group that is involved in those cases.Alabama could have easily drawn a second majority-Black district, the challengers in the case argued. They offered several sample maps with possible configurations of how to do so. Last year, a three-judge panel unanimously agreed with that argument and ordered the state to do so. The panel, which included two judges appointed by Donald Trump, said the question of whether the state had violated the law was “not a close one”.Notably, the majority rejected an argument from Alabama that it should only be required to draw an additional majority-Black district if the plaintiffs could prove it was required without considering race. That theory would have made it extremely difficult for plaintiffs to show discrimination had occurred in redistricting against minority voters.“This court has long recognized – and as all members of this court today agree – the text of §2 establishes an effects test, not an intent test,” Kavanaugh wrote in a concurring opinion. “The effects test, as applied by Gingles to redistricting, requires in certain circumstances that courts account for the race of voters so as to prevent the cracking or packing – whether intentional or not – of large and geographically compact minority populations.”Joe Biden praised the court’s decision and said he and Vice-President Kamala Harris would continue to push Congress to restore the full protections of the Voting Rights Act. The US supreme court, in a 5-4 opinion authored by Roberts in 2013, gutted a key provision of the law that required states with a history of voting discrimination to get voting changes pre-cleared by the federal government before they went into effect.“The right to vote and have that vote counted is sacred and fundamental – it is the right from which all of our other rights spring. Key to that right is ensuring that voters pick their elected officials – not the other way around,” the president said in a statement. “Today’s decision confirms the basic principle that voting practices should not discriminate on account of race, but our work is not done.”Merrick Garland, the US attorney general, praised the decision in a statement.“Today’s decision rejects efforts to further erode fundamental voting rights protections, and preserves the principle that in the United States, all eligible voters must be able to exercise their constitutional right to vote free from discrimination based on their race,” he said. “The right to vote is the cornerstone of our democracy, the right from which all other rights ultimately flow.”Justice Clarence Thomas wrote a dissenting opinion that was joined at various parts by fellow conservative justices Samuel Alito, Neil Gorsuch and Amy Coney Barrett. The supreme court has long misinterpreted section 2, he wrote, restating his prior view that it does not even apply to redistricting cases. He also wrote that the majority opinion required too much consideration of race in drawing district lines and urged a more race-neutral approach.“As applied here, the amended §2 thus falls on the wrong side of ‘the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law’,” Thomas wrote. “It replaces the constitutional right against intentionally discriminatory districting with an amorphous race-based right to a ‘fair’ distribution of political power, a ‘right’ that cannot be implemented without requiring the very evils the constitution forbids.”Alito, writing separately in dissent, also said that the plaintiffs advocating for an additional majority-minority district “must show at the outset that such a district can be created without making race the predominant factor in its creation”.“Today’s decision unnecessarily sets the VRA on a perilous and unfortunate path,” he wrote.The supreme court intervened in February 2022 on an emergency request and allowed Alabama’s maps to go into effect for the 2022 elections. Even though Alabama’s election was not until the end of May, the court said it was too close to the election to upend the map.Alabama had argued that the lower court had wrongly decided the case by taking race too much into account. The challengers in the case should have been required to show that they could draw a second majority-Black district without considering race at all, Edmund LaCour, the state’s solicitor general, said during oral argument last year.The case was seen as a “textbook” example of the kind of discrimination in redistricting that section 2 of the Voting Rights Act was designed to prevent. The provision outlaws any voting practice that discriminates on the basis of race and litigants have frequently used it to challenge electoral maps that make it harder for minorities to elect the candidate of their choice. It was widely understood to be the most powerful remaining provision in the landmark civil rights law after the US supreme court’s 2013 decision in Shelby County v Holder. That decision blocked another part of the landmark civil rights law requiring states with a history of voting discrimination to get their changes approved by the federal government. More

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      Americans want to join unions. The supreme court doesn’t like that | Moira Donegan

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      Their contract had expired, so the local teamsters, drivers of concrete-mixing barrel trucks for a firm called Glacier Northwest, in Washington state, decided to walk off the job. Like all strikes, the point of the work stoppage was to inflict financial consequences on a recalcitrant management side: to show the bosses that their employees were united in shared interest and mutual protection and that it would cost them less money to negotiate in good faith and agree to the workers’ demands than to continue to fight the union for less favorable, more exploitative conditions. When the teamsters began their strike, 16 of the barrel mixing trucks were full. They drove them back to the Glacier Northwest lot and left them there.But if you don’t mix concrete, it hardens, and becomes useless. If this happens in a barrel truck, sometimes that can cause damage to the truck, too. When Glacier Northwest realized that their teamster employees had gone on strike, non-union workers were able to remove the concrete over the course of five hours, averting damage to the trucks. But they lost the use of all the concrete that had been mixed in those 16 barrel trucks that day.This injury – the loss of 16 trucks’ worth of concrete to a regional construction supplier in the north-west – is the pretext that the US supreme court used this week to weaken the National Labor Relations Board and deal a blow to the right to strike.In the case, Glacier Northwest v International Brotherhood of Teamsters, eight of the court’s nine justices found that management could sue the union for the damage caused to their property during the strike. Only Justice Jackson dissented. In addition to encouraging companies to sue their workers over strikes and ensuring that unions will pre-emptively avoid strikes or adopt less effective tactics to protect themselves from liability, the ruling also opens a wide new avenue for union-busting litigators to evade the authority of the National Labor Relations Board – the federal body that was created by Congress specifically to handle such conflicts and enforce workers’ rights.The decision, then, furthers two of the supreme court’s major long-term projects: the erosion of labor protections, and the weakening of administrative agencies, whose expertise the court routinely ignores and whose authority the justices seem determined to usurp for themselves.It might risk reinforcing the dramatically low standards for the supreme court’s behavior to note that the majority opinion, authored by Amy Coney Barrett, did not represent the worst of all possible outcomes. Barrett included some limiting language in her writing that preserves the possibility of binding NLRB oversight in these lawsuits. She clarified that unions do have some right to time their strikes in order to maximize financial damage to management – a move that would protect, say, the right of Amazon workers to initiate work stoppages during the holiday shipping rush, as they did last year. The gestures toward a continued right to strike appear designed to secure the votes of Elena Kagan and Sonia Sotomayor, who joined the majority, and to dilute the power of Samuel Alito, Neil Gorsuch and Clarence Thomas, who wanted to gut NLRB authority over strike-related litigation entirely.But it is important to consider Glacier Northwest in context: in recent years, the court has made it easier for companies to bar their employees from bringing class-action lawsuits, made it harder for public-sector unions to collect dues and struck down a California law that allowed unions to recruit agricultural workers on farms. The new ruling, which finds that strikes are often illegal when they lead to damage to employers’ property, only furthers their long project of making it harder for workers to join a union, easier for employers to break one up, and more legally risky for workers to take the kinds of action that can actually elicit concessions from the boss.It will get worse. If they get their way – a less procedurally complicated case, a more amenable vote from Roberts, Barrett or Kavanaugh – the court’s most extreme conservatives will shape a bleak future for American labor. Their aim is to all but eliminate rights to organize and strike that are enjoyed by people in the most important, foundational and meaningful part of their public lives: the workplace.“Workers are not indentured servants, bound to continue laboring until any planned work stoppage would be as painless as possible for their master,” Jackson wrote in her dissent. But that is the labor settlement that at least three members of the extremist conservative wing hope to enact. There is only one direction that this court’s labor jurisprudence is going.The ruling comes at a moment when the American labor movement, long dormant and defeated, is experiencing something like a small resurgence, however timid and sporadic. According to data from the Bureau of Labor Statistics, the number of unionized workers grew last year in both the public and private sectors, with the biggest increases in sectors like transportation and warehousing, arts and entertainment and durable goods manufacturing.This growth has been accompanied by highly visible, media-savvy worker organizing drives among journalists, fast-food workers and graduate student instructors, and comes on the heels of high-profile strikes by groups ranging from Oakland teachers to Hollywood writers. Since 2021, this union resurgence has been aided in no small part by the Biden NLRB, which has been unusually hospitable to labor’s claims, even for a Democratic administration.More and more workers are saying that they want to be a part of a union – and more and more of them are finding ways around the many and onerous obstacles designed to prevent them from forming one. Given the growing power of American unions, maybe the anti-worker court is right to be scared.
      Moira Donegan is a Guardian US columnist More

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      The Supermajority review: How the supreme court trumped America

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      Michael Waldman ran the speechwriting department in Bill Clinton’s White House. His new book about the conservative supermajority which dominates the supreme court is written with the verve of great campaign oratory.Waldman is also a learned lawyer, president of the Brennan Center for Justice at New York University School of Law, and a talented popular historian. His new book focuses on three horrendous decisions the court rendered at the end of its term one year ago, but it includes a brisk history the court of the last 200 years, from the disastrous lows of Dred Scott v Sandford (1857) and Plessy v Ferguson (1896) to the highs of Brown v Board of Education (1954) and Obergefell v Hodges (2015).But the longest analysis is devoted to those three days in June 2022 when the court “crammed decades of social change into three days”.Waldman writes: “It overturned Roe v Wade [on abortion] … putting at risk all other privacy rights. It radically loosened curbs on guns, amid an epidemic of mass shootings. And it hobbled the ability of government agencies to protect public health and safety and stop climate change.”These decisions were the work “of a little group of willful men and women, ripping up long-settled aspects of American life for no reason beyond the fact that they can”.Waldman describes how earlier extreme decisions of the court provoked gigantic national backlashes.The civil war started just four years after the court held in Dred Scott that African Americans could not sue in federal court because they could not be citizens of the United States.In May 1935, the “Black Monday decisions” obliterated key parts of Franklin Roosevelt’s New Deal, including striking down the National Recovery Administration. Those rulings led to Roosevelt’s unsuccessful plan to expand the size of the court, which in turn led the court to reverse its position on the New Deal, suddenly upholding Social Security and the National Labor Relations Act. Referring to the number of justices on the court, one newspaper humorist called it “the switch in time that saved nine”.Waldman describes the current make-up of the court as the ultimate outcome of the longest backlash of all – the one to the court led by Earl Warren, who crafted the unanimous opinion in Brown, outlawing segregation in public schools.Equally important were decisions requiring legislative districts to have equal populations. Before Reynolds v Sims in 1964, nearly 40% of the population of California lived in Los Angeles but the state constitution awarded that county just one of 40 state senators. Proclaiming the revolutionary doctrine of “one person, one vote”, the court said: “Legislators represent people, not trees or acres.” By 1968, 93 of 99 state legislatures had redrawn their districts to comply.But these vital building blocks of modern American democracy coincided with the dramatic social changes of the 1960s, including the fight for racial equality and the explosion of sexual freedom.“The backlash to the 1960s lasted much longer than the 1960s did,” Waldman observes. “Most of us have spent most of our lives living in it.”Richard Nixon’s 1968 campaign was the first to capitalize on this backlash. A young campaign aide, Kevin Phillips, explained the plan to the journalist Garry Wills: “The whole secret of politics” was “knowing who hates who”, a theory that reached its apotheosis 50 years later with the ascendance of Donald Trump.The problem for America was that most of the energy on the left dissipated after the election of Nixon. At the same time, the right began a decades-long battle to turn back the clock. For 50 years, the right has had overwhelming organizational energy: it built a huge infrastructure of think tanks and political action committees that culminated with the election of Trump and his appointment of the three justices who cemented the rightwing supermajority.Recent reports have highlighted the enormous amounts of money that have directly benefitted justices John Roberts and Clarence Thomas (never mind Thomas’s own gifts from Harlan Crow) through payments to their wives. Waldman reminds us how long this has been going on. Way back in 2012, Common Cause charged that Thomas failed to disclose nearly $700,000 from the Heritage Foundation to his wife, forcing him amend 20 years of filings.Waldman is particularly good at explaining how earlier rulings have accelerated the infusion of gigantic sums that have corrupted American politics. Most important of course was Citizens United v Federal Election Commission, in 2010, when five justices including Roberts “undid a century of campaign finance law”.Citizens United made it possible for corporations and unions to spend unlimited sums in federal elections as long as they plausibly pretended they were independent of the candidates they backed. As Waldman writes, quickly “that proved illusory, as presidential contenders … raised hundreds of millions of dollars for their campaigns, all of it supposedly independent”.This was the beginning of the Roberts majority’s use of the first amendment guarantee of free speech “to undermine democracy, a constitutional contradiction”. Two years after Citizens United, the court eliminated “a long-standing cap on the amount” individuals could give to federal candidates.These rulings “remade American politics”, Waldman writes. “In the new Gilded Age of fantastically concentrated wealth, billionaires again dominated the electoral system.”The shift was dramatic “and largely unremarked”. In 2010, billionaires spent about $31m in federal races. A decade later they spent $2.2bn. Last year, Peter Thiel provided nearly $30m in “independent funds” to support JD Vance in Ohio and Blake Masters in Arizona.Waldman concludes that the court has become a serious threat to American democracy. He suggests our only hope is that Democratic successes in last year’s midterms – many based on fury over the fall of Roe v Wade – mark the beginning of a backlash against the rightwing revolution the court now shamelessly promotes.
      The Supermajority: How the Supreme Court Divided America is published in the US by Simon & Schuster More

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      DeSantis envisions ‘quarter-century’ of far-right majority in the supreme court

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      In a speech to Christian media in Orlando, Florida’s governor, Ron DeSantis, envisaged the creation of a “7-2 conservative majority that would last a quarter-century” on the US supreme court should he be elected president next year.Speaking to the National Religious Broadcasters Convention, DeSantis said: “I think if you look over the next two presidential terms, there is a good chance that you could be called upon to seek replacements for Justice Clarence Thomas and Justice Samuel Alito and the issue with that is, you can’t really do better than those two.”Supreme court justices serve for life or until they choose to retire. Thomas, who has rejected calls to resign over his relationship with a Republican mega-donor, is 74. Alito is 73. Both are hard-right figures on a court tipped firmly right, 6-3.But DeSantis also alluded to a chance to replace Sonia Sotomayor, a liberal appointed by Barack Obama who is now 68, or perhaps Elena Kagan, another Obama appointee who is now 63, should he win the White House and serve two full terms.He said: “So it is possible that in those eight years, we have the opportunity to fortify justices … Alito and Thomas as well as actually make improvements with those others, and if you were able to do that, you would have a 7-2 conservative majority on the supreme court that would last a quarter-century.”According to the Washington Post, DeSantis’s comments were met with “raucous applause”.The governor also took a shot at John Roberts, the conservative chief justice who has sided with liberals on key decisions, including the one last year which eliminated federal abortion rights.“If you replace a Clarence Thomas with somebody like a Roberts or somebody like that,” DeSantis said, “then you’re gonna actually see the court move to the left, and you can’t do that.”Under Roberts, the court has moved to the right.Last year, Alito wrote the opinion in Dobbs v Jackson, which removed abortion rights. Thomas wrote the opinion in New York State Rifle and Pistol Association v Bruen, striking down a gun control law in place since 1911.DeSantis, 44, is expected to announce his campaign for the Republican presidential nomination this week.Donald Trump, 76, is the clear frontrunner to face President Joe Biden, who is 80 and beat Trump in 2020. On Monday, however, Fox News reported that 100 Trump White House alumni have formed a pro-DeSantis group called the Eight-Year Alliance.DeSantis is preparing to launch a campaign fueled by hard-right state legislation. Notable policies have included a crackdown on the teaching of LGBTQ+ issues and of race in US history, legislation targeting trans people in public life, a loosening of gun control laws and a six-week abortion ban.skip past newsletter promotionafter newsletter promotionMany observers say that record may prove too extreme for voters in a presidential election.On abortion rights, for example, public opinion is consistently against the kind of extreme bans recently passed in Republican states.In Orlando, the Post said, DeSantis “promoted the six-week abortion ban he helped enact this year … a divisive topic he tends to brush past, even with staunchly conservative audiences”.The governor’s comments were “brief”, the Post said. But when he said his ban was meant to “protect an unborn child that has a detectable heartbeat”, he was “drowned out by extended cheers”.Gynecologists say fetuses do not have heartbeats at six weeks, a stage at which many women do not know they are pregnant.In Orlando, DeSantis said his ban was “the right thing to do”. More

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      Democrats fight to expand a ‘broken and illegitimate’ supreme court

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      Wearing dark suit and sunglasses reminiscent of a character in The Matrix, Brian Fallon pointed a finger at the gleaming US Capitol building to his left, then to the marble edifice of the supreme court to his right.“If you look at any point in the last 40 years, Congress’s public approval always hovers around 10%,” said Fallon, a former justice department official who worked for Hillary Clinton’s 2016 presidential campaign. “But the [supreme] court’s is now in the 30s and that’s a historical anomaly because there’s always at least been the benefit of the doubt conferred upon the court.”There is no better symbol of the crisis of trust in American institutions than its highest court, pummeled by partisan appointments, divisive rulings and ethical scandals. In a University of Chicago survey last year just 18% of Americans said they had a great deal of confidence in the supreme court – the lowest in half a century.Congressional Democrats and allies such as Fallon, now head of the pressure group Demand Justice, believe that they have a solution: expand the court by adding four seats to counter a rightward tilt during the Donald Trump administration that, they say, put it out of step with mainstream public opinion.This week a group including Senators Ed Markey, Tina Smith and Elizabeth Warren, and representatives Jerrold Nadler, Hank Johnson, Cori Bush and Adam Schiff announced the reintroduction of legislation that would create a 13-justice bench.At a press conference in front of the supreme court steps, surrounded by activists holding “Expand the court” signs as tourists and school groups wandered by, they pointed out that, while Democrats gained more votes in seven of the last eight presidential elections and represent 40 million more people in the Senate, Republicans have appointed 15 of the last 19 justices.These two “stolen” seats, the group argues, after Republicans blocked the confirmation of President Barack Obama’s nominee Merrick Garland in 2016 only to ram through the confirmation of Amy Coney Barrett 10 days before the 2020 election, even as millions of votes were being cast for Joe Biden.Now, Markey said, it is time to “fix this broken and illegitimate court” with a forceful response. He said: “When a bully steals your lunch money in the schoolyard, you have to do something about it, or else the bully will come back over and over again,” he said. “So we’re in this fight, and we’re going to reclaim these seats. We’re not going to allow the bully to win.”The Massachusetts senator also called for the resignation of Justice Clarence Thomas over his failure disclose gifts provided by the billionaire Republican donor Harlan Crow and his wife Ginni’s more than $680,000 in unreported income from the Heritage Foundation, a conservative thinktank. “We’ve got to remind him that we have a system of constitutional checks and balances, not cheques or balances.”The speakers argued that, given recent decisions on abortion rights, voting rights, gun control measures and environmental regulations, the supreme court is beholden to rightwing special interests and facing a crisis of legitimacy.Schiff, a congressman from California, said: “This is not a conservative court, not in a legal sense. A conservative court would have some respect for precedent. This is instead a political and partisan court with a reactionary social agenda and the only question, Mitch McConnell having packed the court, is will we do anything about it or will we subject an entire generation of Americans to the loss of their rights?“Dirtier air and dirtier water and dirtier elections? Is that the fate we would have for the next generation? My kids are both in their early 20 and I am not satisfied that they should have to live under a reactionary supreme court for their entire adult lives and I don’t want anyone else’s kids to have to suffer that fate.”The legislative effort was first launched two years ago but this time it is backed by Planned Parenthood and Naral Pro-Choice America, spurred by the court’s decision last year to overturn the constitutional right to abortion after nearly 50 years.Jacqueline Ayers, senior vice-president of policy, campaigns and advocacy at the Planned Parenthood Federation of America, noted that 19 states have since moved to ban the procedure. “The moment is calling for us to realise that it’s necessary that we have fairness, that we have balance in our supreme court,” she said. “The bottom line is the courts are being used as a weapon to take away our rights.”skip past newsletter promotionafter newsletter promotionCongress has added and removed seats on the supreme seven times throughout its history – though the most recent example goes all the way back to the presidency of Ulysses S Grant in 1869. Supporters also contend that 13 is not an arbitrary number but based on sound logic: it would mean one justice per circuit court of appeals, consistent with how the number of justices was originally determined.But they face an uphill battle to persuade Biden and other senior Democrats to put the issue front and centre of next year’s election campaign. In 2021 a report by the president’s supreme court reform commission suggested that “court packing” would be a cure that is worse than the disease, citing autocrats using it to shore up power in Argentina, Venezuela, Turkey, Hungary and Poland.Biden, who hangs a portrait of Franklin Roosevelt in the Oval Office, may also be wary of what happened when the 32nd president, up against a supreme court that ruled parts of his New Deal unconstitutional, floated a plan in 1937 that could have expanded the bench to 15 seats. It was unpopular with the public and failed to clear the Senate.Bill Galston, a former policy adviser to President Bill Clinton, said: “I don’t think the Biden White House are going to walk down that road during a presidential election. You don’t need to know a lot of American history to remember what happened the last time a president tried to do this – that was a president at the very peak of his popularity and no one can say that President Biden is at the very peak of his.”Galston, a senior fellow at the Brookings Institution thinktank in Washington, added: “The general Democratic narrative is that Republicans are trying to change the rules to their advantage and a White House-led effort to expand or, as the Republicans would say, instantly pack the supreme court would blow up that narrative and create a new centre of attention with the Democrats on the defensive.”Conservatives would indeed cry foul at any such proposal and accuse Democrats of hypocrisy. Curt Levey, president of the advocacy group Committee for Justice, said: “If you could just add seats every time one party controls both Congress and the presidency then the supreme court would reflect whatever party was in power at the time and it would be a completely politicised supreme court. It would be very dangerous.”He added: “It strikes me that the Democrats are sore losers here. You had a liberal activist supreme court arguably from 1937 to as late as 2015 and during that entire 80-year period Republicans did not call for packing the court and they did not question the court’s legitimacy. They complained about the court’s decisions but they really never tried to undermine the court.“It’s only been three years since Barrett was appointed and there was a real conservative majority in the court and the Democrats just can’t stand it. They have used the court to implement their agenda for so many decades that the idea that they’ve lost that is just driving them crazy.”Democrats contend, however, that in recent years Republican dominated state legislatures have been content to expand the number of seats on their states’ respective supreme courts.The national effort has a new sense of momentum with the backing of dozens of civil liberties, education, climate and labour organisations, while last year’s midterm elections showed the political potency of abortion rights. Fallon described the presence of Planned Parenthood and Naral this week as “a gamechanger”.Acknowledging that Biden will be “one of the last dominoes to fall”, Fallon predicted that supreme court expansion could be on the agenda for Democrats in next year’s congressional elections, for example in Senate primary races in California and Maryland and in House races in New York and Los Angeles.He said in an interview: “If you want to be a Democratic candidate speaking to that outrage, if you want to mobilise those voters upset about rulings that come out of the court on reproductive rights, now you need to have this as part of your arsenal and what you’re going to promise in terms of what you’ll support when you get to Washington.“It might not be on the timeline of Joe Biden in 2024 but certainly in 2028, when there’s another open contested presidential primary, I would expect by then that every candidate has to be for it.”
      This article was amended on 21 May 2023 to replace an incorrect photograph of Ed Markey. More

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      US supreme court pursuing rightwing agenda via ‘shadow docket’, book says

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      Conservative justices on the US supreme court consciously broke with decades-old congressional rules and norms to shift laws governing religious freedom sharply to the right through a series of shadowy unsigned and unexplained emergency orders, a new book reveals.Five of the six conservatives who now command the majority on the US’s most powerful court have rammed through some of their most contentious and extreme partisan decisions using the so-called “shadow docket” – unsigned orders issued frequently late at night, in literal and metaphorical darkness. The orders do not reveal who voted for them or why, often providing one-line explanations of the legal thinking behind them.The switch from openly argued cases, aired in public, to the unaccountability of the shadow docket was made purposefully during the pandemic in cases dealing with religious liberty, concludes Stephen Vladeck, an authority on the federal courts at the University of Texas law school. He warns that the trend is merging with the current ethics scandals surrounding the conservative justice Clarence Thomas to damage the legitimacy of the court and threaten a full-blown constitutional crisis.Vladeck exposes the largely unnoticed shift towards furtive justice in his new book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. He shows how rightwing justices have abused the court’s emergency powers to run roughshod over the longstanding norm that shadow docket orders should be used sparingly and with extreme caution.Rightwing justices are now deploying such orders dozens of times each term. Over three terms alone, from 2019 to 2022, the court granted emergency relief in more than 60 cases: effectively overturning the considered decisions of lower courts through rushed, unexplained rulings.Among those orders were decisions that have had profound and nationwide impact over some of the most hotly disputed areas of public life, from abortion to immigration, voting rights, the death penalty and religious practices. Many appear to align more closely with Republican political priorities than with legal principles.One such order alone, the decision on the shadow docket to block the Biden administration’s January 2022 requirement that large employers mandate Covid vaccinations for their workforce, affected more than 83 million Americans – about a quarter of the US population.“The rise of the shadow docket reflects a power grab by a court that has, for better or worse, been insulated from any kind of legislative response,” Vladeck writes.The author chronicles how the most disturbing use of the shadow docket came with the rewriting of constitutional protections for religious liberty. The dramatic shift followed the death of the liberal justice Ruth Bader Ginsburg and her replacement in 2020 with a devout Catholic rightwinger, Amy Coney Barrett.The switch gave the conservative majority sufficient votes to overcome all resistance to ramping up use of the shadow docket, including from the chief justice, John Roberts, who though conservative has expressed mounting unease about the practice.The change in tactics could be seen almost immediately. Within weeks of taking her seat, Barrett joined four other rightwingers – Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – to drive through a major change in the constitutional understanding of religious liberty, blocking New York state Covid restrictions on the numbers of worshippers allowed to gather in churches.The order was unsigned and gave virtually no explanation for a decision that profoundly changed the law of the land, rolling back government regulations where they touched upon religious practices. It was issued at four minutes before midnight on the day before Thanksgiving – a moment that would guarantee minimal media attention.The ruling was all the more extraordinary as by then New York had scaled back its Covid restrictions and churches no longer had to limit congregation sizes. So the court’s change in the law was moot.The same five rightwing justices went on to impose their will on religious liberty laws with similar late-night one-sentence rulings knocking back state Covid restrictions in California, New Jersey and Colorado. In total, the majority issued emergency injunctions against state Covid rules on religious grounds six times in four months.The sudden spate of shadow docket orders that followed Barrett’s arrival on the court was not accidental, Vladeck says. The justices could have taken up several pending cases in full court that would have addressed the issue of religious freedoms in open hearings on the merits, yet they chose to go the obscure shadow docket route.“Here we have the court not just using emergency applications to change substantive legal principles, but doing so even as they are considering requests to make the same changes through merits decisions,” Vladeck told the Guardian.Vladeck links the rise of the shadow docket to the increasing isolation of the supreme court and its disconnection from public opinion. The growing use of the shadow docket also mirrors the polarisation and toxification of American politics.Vladeck warns that the growing trend towards jurisprudence produced in darkness is endangering the legitimacy of the nation’s most powerful court. Public confidence in the court is already at a historic low, compounded by the recent revelations that Thomas accepted lavish gifts from the Republican billionaire Harlan Crow.“The shadow docket is a symptom of a larger disease,” Vladeck said. “The disease is how unchecked and unaccountable the court is today, compared to any of its predecessors.” More