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      The supreme court is deciding more and more cases in a secretive ‘shadow docket’ | Moira Donegan

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      OpinionUS politicsThe US supreme court is deciding more and more cases in a secretive ‘shadow docket’Moira DoneganThese emergency rulings – short, unsigned and issued without hearing oral arguments – undermine the public’s faith in the integrity of the court Tue 31 Aug 2021 06.14 EDTLast modified on Tue 31 Aug 2021 16.45 EDTLast week, it was Remain in Mexico. On Tuesday, the supreme court issued an order requiring the Biden administration to reinstate the Trump-era policy that required asylum seekers from Central America to stay across the border in Mexico while their claims are adjudicated. It was an uncommonly aggressive intervention into foreign policy, an area where previous courts have preferred a light touch, and it posed massive logistical, diplomatic and humanitarian crises at the border that will need to be rapidly resolved if the Biden administration is to comply with the order.Two days later, it was the eviction moratorium. On Thursday, the court blocked an extension of the federal emergency ban on evictions, gutting a 1944 law that gave the CDC the authority to implement such measures to curb disease, and endangering the 8m American households that are behind on rent – who now, without federal eviction protection, may face homelessness.Both of these orders last week were issued in the dead of night. Their opinions were truncated, light on the details of their legal reasoning, and unsigned. Vote counts were not issued showing how each justice decided. And despite the enormous legal and human impact that the decisions inflicted, they were the product of rushed, abbreviated proceedings. The court did not receive full briefs on these matters, heard no oral arguments and overrode the normal sequence of appellate proceedings to issue their orders.Welcome to the “shadow docket”, the so-called emergency proceedings that now constitute the majority of the supreme court’s business. Minimally argued, rarely justified and decided without transparency, shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters. To have an issue addressed on the shadow docket, a litigant has to apply for “emergency relief” – usually to stop a decision against them from a lower court from going into effect while appeals proceed. Traditionally, applicants would need to demonstrate that they would suffer “irreparable harm” if their petition wasn’t granted immediately. So one historical use of the shadow docket has been in federal death penalty cases, where the court has used the emergency proceeding to affirm or deny requests for stays of execution.But in recent years the court has largely dispensed with any meaningful application of the irreparable harm standard, and instead has entertained emergency relief petitions from more and more litigants, issuing shadow docket rulings on increasingly significant and controversial legal questions without the rigor or transparency that such issues demand.The term “shadow docket” was coined in 2015 by a conservative law professor to refer to the thousands of supreme court actions each term that defy the “normal procedural regularity” of the federal appellate process. A newer, expanded version of the shadow docket began to emerge in 2017, when the Trump administration came to power. Previously, shadow docket emergency requests had been rarely used, to advance the interests of the governing administration. From 2001 through 2016, the Department of Justice applied for these emergency relief interventions from the court only eight times. During the four years of Trump’s presidency, however, the justice department applied 41 times. The use of shadow docket requests by Trump’s justice department especially accelerated after 2018, when Justice Anthony Kennedy retired and was replaced by Brett Kavanaugh, initiating the court’s rightward lurch.The gambit worked. Of those 41 requests, the supreme court granted 28 of them in whole or in part, denying the Trump administration outright only four times – much more generous than the court has been to other litigants. Bypassing lower courts, the Trump administration was able to solicit the supreme court for a green light for border wall funding and construction, for a ban of transgender troops in the military, for a ban of immigrants from Muslim majority countries, and for many, many executions during the administration’s 11th-hour killing spree in the latter half of 2020.Ultimately, many of the policies that the court used the shadow docket to keep in place were never declared legal: they were simply rescinded when Trump left office. It was only because of the supreme court’s unusual intervention via the shadow docket that they were able to be enacted at all. If this seems like the court merely deferring to the prerogatives of the executive, rest assured that it isn’t: the court’s shadow docket has not been similarly generous towards Biden administration claims.In this way, the shadow docket’s expanded use raises troubling questions – both for transparency, and for the separation of powers. What does it mean for popular sovereignty when the unelected supreme court can overturn the actions of elected officials seemingly at whim, without reading briefs, without hearing arguments and without having to assign judges’ names to their opinions or make any effort to explain their reasoning? The supreme court’s cryptic, late-night shadow docket decrees risk overextending the court’s already tremendous power, and its lack of transparency shrinks the already slim opportunities for oversight. There is considerable potential for abuse, and there are also simple logistical problems: without a real accounting of the justices’ reasoning, lower courts are left to guess why a certain decision was handed down, rendering them less equipped to interpret precedent.And all of this is before we get to the shadow docket’s real problem: it further undermines the already severely damaged public trust in the court. The justices and the legal elites who flatter them like to say that the supreme court is composed of neutral, apolitical arbiters of the law. But this mythology conflicts with a growing public perception of the federal judiciary as protectors of Republican priorities. This impression is not helped by the reality that the court’s decisions on the shadow docket seem much less consistent in their legal reasoning than they do in their politics. In light of this, it is tempting to conclude that the court has transformed the once-anodyne tool of the shadow docket into a way to achieve the preferred outcomes of the conservative majority without having to justify its own actions to the public.Steve Vladeck, a University of Texas law professor and one of the shadow docket’s most prominent critics, summarized the danger in an article in the Harvard Law Review. The shadow docket, he writes, “risks the perception that the rule is not one for the federal government in general, but for the federal government at particular moments in time – perhaps depending on the identity (or political affiliation) of the sitting president, or perhaps, more granularly, depending on the political or ideological valence of the particular government policy at issue”.With respect to Professor Vladeck, maybe the shadow docket does not risk such a perception – maybe it reaffirms it.
      Moira Donegan is a Guardian US columnist
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      Biden says voting rights laws are a 'national imperative'. Reforming the filibuster must be too | David Litt

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      OpinionUS politicsBiden says voting rights laws are a ‘national imperative’. Reforming the filibuster must be tooDavid LittRepublicans’ big lie makes it all but impossible for our republic to heal itself without new laws to defend democracy Wed 14 Jul 2021 10.33 EDTLast modified on Wed 14 Jul 2021 16.38 EDTAt the risk of giving away a speechwriting secret, one time-tested way to organize a presidential address – or any piece of persuasive writing – is with something called “Monroe’s Motivated Sequence”. It’s a five-part structure: explain the context; define the problem; lay out the solution; put forward a vision of the future; issue a call to action.By this measure, on Tuesday President Biden delivered two-fifths of a major address on democracy reform. He connected the wave of Republican anti-voting laws to the 6 January attack on the Capitol and the insidious legacy of segregation and Jim Crow. He rightly referred to Republicans’ authoritarian efforts as “the most dangerous threat to voting and the integrity of fair and free elections in our history”.Largely absent from the president’s remarks, however, was a solution. This was probably a conscious choice on the part of Biden and his inner circle. It’s possible that the White House would rather negotiate with lawmakers behind the scenes than make demands of them in public. It’s possible that the president did not present a plan because he has not yet settled on one.But it’s also possible, and perhaps even probable, that the president went out of his way to avoid detailed solutions because he didn’t yet want to answer what will possibly be the defining question of his first term. Will Joe Biden publicly call on Senate Democrats to reform the filibuster in order to pass new voting-rights bills into law? We still don’t know. Instead, after urging Congress to send the For the People Act and John Lewis Voting Rights Act into law, Biden employed a carefully worded phrase:“Legislation is one tool, but not the only tool.”This statement is true. But it’s also a little like saying brakes are only one tool for protecting drivers. In yesterday’s remarks, the president tried to lay out the broad outlines of what safeguarding democracy sans legislation might look like. And in doing so, he made one of the strongest cases to date that while reforming the filibuster won’t be easy, it is essential if American democracy is to survive.It’s not hard to see why many democracy advocates are eager to find ways to stand up for fair and free elections without trying to pass new laws. It will be difficult to persuade all 50 Senate Democrats to embrace filibuster reform. It will also be difficult to persuade all 50 Senate Democrats to support a voting-rights law that neutralizes the threat that voter suppression and election subversion pose. To do both these things is not impossible – but one could be forgiven for hoping there’s an easier path.In Tuesday’s speech, Biden hinted at what such a path might look like. His Department of Justice will double the size of its voting rights division and sue to overturn discriminatory laws. He urged “advocates, students, faith leaders, labor leaders and business executives” to join together to raise awareness and apply public pressure. He asked Republicans in Congress to put country over party and asked pro-democracy Americans to run for local office.All these are ideas worth pursuing. It’s even possible they’ll be sufficient. If Biden and his allies can overturn voter suppression laws in court and turn out a large enough coalition of voters, they’ll win elections with supermajorities – much like Joe Biden did in 2020, when his large popular-vote margin overcame a disadvantage in the electoral college. If authoritarianism is proven to be a political loser, politicians will abandon it. Over time, our republic will repair itself.But such a scenario is highly improbable. Arguably, it’s far less likely than the Senate reforming the filibuster to pass a voting rights bill into law. Because in the wake of 6 January, and in thrall to the big lie, the Republican party has taken drastic new steps to make it more difficult than ever for our political process to self-correct.Biden himself recognized precisely this danger in his remarks. He described in great detail recent voter-suppression laws, such as the one proposed in Texas which would force voters to drive further to cast their ballots and permit partisan poll workers to intimidate them as they do. These unprecedented voter suppression measures are expressly designed to insulate politicians from backlash. It doesn’t matter how many Americans turn out to support democracy if they’re rendered unable to vote.Even if Democrats are able to overcome voter-suppression laws, and win clear majorities at the ballot box, that may not be enough to win elections. As the president put it, “It’s no longer just about who gets to vote or making it easier for eligible voters to vote. It’s about who gets to count the vote, who gets to count whether or not your vote counted at all.” He rightly referred to this attempt to ignore valid vote counts as “election subversion”. But for now at least, Biden did not draw the logical conclusion: if politicians start overturning fair elections, voter education and coalition building cease to matter.Nor are elected officials the only ones making it harder for democracy to defend itself. Just two weeks ago, the six conservative supreme court justices gutted Section 2 of the Voting Rights Act, legalizing a raft of anti-voting laws that would previously have been be overturned for racial discrimination. Doubling the size of the justice department’s voting rights division is commendable. But having more lawyers filing federal lawsuits won’t do much good if the court decides those suits can’t prevail.Which brings us back to the one tool guaranteed to have an enormous, immediate impact: legislation. If Senate Democrats choose to reform the filibuster tomorrow, they can restore the Voting Rights Act, reform the way votes are counted and elections are certified and vastly expand access to the ballot – in ways even the far-right supreme court would be unlikely to overturn, and gerrymandering Republican state legislatures would be powerless to reverse. There’s no guarantee that Biden can persuade Congress to reform the filibuster. But if he means what he says about protecting democracy, he has no choice but to try.The good news is that the White House may already understand this. If passing voting rights legislation is, to use the president’s phrase, “a national imperative” and if the only way to pass that legislation is to reform the filibuster, then reforming the filibuster is a national imperative, too. Because as President Biden has now made clear, the bully pulpit, executive branch and ballot box alone are not sufficient to protect our democracy. And by the time we know for certain that new laws are necessary, it will be too late.
      David Litt is an American political speechwriter and New York Times bestselling author of Thanks Obama, and Democracy In One Book Or Less. He edits How Democracy Lives, a newsletter on democracy reform.
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      US supreme court deals blow to voting rights by upholding Arizona restrictions

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      The US supreme court has upheld two Arizona voting restrictions in a ruling that dealt a major blow to the Voting Rights Act, the landmark 1965 civil rights law designed to prevent voting discrimination.In a 6-3 ruling, the justices upheld Arizona statutes that prohibit anyone other than a close family member or caregiver from collecting mail-in ballots, which are widely used in the state.The court also upheld a statute that requires officials to wholly reject votes from people who show up to cast a ballot in the wrong precinct, even if the person is otherwise entitled to vote in the state.“Neither Arizona’s out-of-precinct rule nor its ballot-collection law violates §2 of the VRA. Arizona’s out-of-precinct rule enforces the requirement that voters who choose to vote in person on election day must do so in their assigned precincts,” Justice Samuel Alito wrote for a majority that included the court’s five other conservative justices, referring to section 2 of the Voting Rights Act.He added: “Having to identify one’s own polling place and then travel there to vote does not exceed the ‘usual burdens of voting’.”The decision means that the Arizona statutes will remain in effect and make it harder to challenge discriminatory voting laws across the US at a time when a swath of Republican-run state legislatures are pushing a wave of new voting restrictions that voting rights advocates say are aimed at suppressing the vote and especially target communities of color.“Today the supreme court made it much harder to challenge discriminatory voting laws in court. The justices stopped short of eviscerating the Voting Rights Act, but nevertheless did significant damage to this vital civil rights law and to the freedom to vote,” Sean Morales-Doyle, the acting director of the voting rights and elections program at the Brennan Center for Justice, said in a statement.Richard Hasen, an election law scholar at the University of California, Irvine, said the decision was a significant blow to the Voting Rights Act, one of America’s landmark civil rights laws.“The conservative supreme court has taken away all the major available tools for going after voting restrictions. This at a time when some Republican states are passing new restrictive voting law[s],” he wrote in a blogpost. “This is not a death blow for section 2 claims, but it will make it much, much harder for such challenges to succeed.”The larger dispute in the case, Brnovich v Democratic National Committee, was how courts should interpret section 2 of the Voting Rights Act, which prohibits any voting practice that results in the “denial or abridgment” of the right to vote based on race. The provision has become a critical tool for civil rights lawyers to challenge discriminatory voting laws in recent years, especially after a 2013 supreme court ruling that dramatically weakened the Voting Rights Act.Alito declined to endorse a specific test for future section 2 cases, but outlined five “guideposts” that could be applied in future cases.Courts should weigh the size of the burden that a voting law imposes, the magnitude of disparities in how they affect different minority groups, the state’s interest in enacting such a law, as well as how far the challenged law departs from standard practice in 1982, the year when the relevant portion of the Voting Rights Act was adopted, Alito wrote.And when courts evaluate a voting law, they need to consider the accessibility of a state’s entire electoral system, rather than just the law at hand, Alito added.Alito used those five factors to set an extremely high bar for challenging the Arizona law.Arizona’s prohibition on out-of-precinct voting only required voters to ensure they showed up at the right precinct on election day, a minimal burden in Alito’s view. Alito also dismissed evidence that minority voters were about twice as likely to have their provisional ballots rejected than white voters, noting that only a small percentage of Arizona voters overall cast an out-of-precinct provisional ballot on election day.“A policy that appears to work for 98% or more of voters to whom it applies – minority and non-minority alike – is unlikely to render a system unequally open,” he stated.Alito took a similar approach in upholding Arizona’s ban on third-party ballot collection. He noted that voters who cast their ballot by mail have several ways to return the ballot other than having someone collect it. The plaintiffs in the case also failed to provide statistically significant evidence, Alito said, that the ban disproportionately harmed Native American voters.Alito also gave states significant leeway to use voter fraud – which is extremely rare – as an excuse to restrict voting. “It should go without saying that a state may take action to prevent election fraud without waiting for it to occur and be detected within its own borders,” he wrote.Justice Elena Kagan wrote a searing dissenting opinion for the court’s three liberal justices, bluntly saying the majority opinion “enables voting discrimination”.The Voting Rights Act, Kagan wrote, makes any voting law that results in racial discrimination illegal, no matter how small the burden is for the voter, since even burdens that seem small can lead to discrimination in voting.She also rejected Alito’s suggestion that the Arizona laws did not provide more of a burden on minority voters because 98% of voters overall were unaffected.“Suppose a state decided to throw out 1% of the Hispanic vote each election. Presumably, the majority would not approve the action just because 99% of the Hispanic vote is unaffected,” she wrote.She also dismissed Alito’s acceptance of voter fraud as an excuse to pass voting restrictions. “Of course preventing voter intimidation is an important state interest. And of course preventing election fraud is the same. But those interests are also easy to assert groundlessly or pre-textually in voting discrimination cases,” she wrote.Joe Biden said in a statement he was “deeply disappointed” with the ruling and renewed his call for federal voting legislation, which Republicans blocked in the US Senate last month.“In a span of just eight years, the court has now done severe damage to two of the most important provisions of the Voting Rights Act of 1965 – a law that took years of struggle and strife to secure,” he said in a statement.Biden added: “While this broad assault against voting rights is sadly not unprecedented, it is taking on new forms. It is no longer just about a fight over who gets to vote and making it easier for eligible voters to vote. It is about who gets to count the vote and whether your vote counts at all.”Democrats in Washington are scrambling to find a way to pass new federal voting rights protections.One of the bills under consideration would restore the portion of the Voting Rights Act that section 2 has been used in lieu of in recent years and require certain states across the country to get voting changes approved by the federal government before they go into effect, in a bid to minimize discrimination.Kagan also noted in her dissenting opinion that the case came to the court at a time when states were considering hundreds of laws that would make it harder to vote, a moment she described as uniquely dangerous for American democracy.“The court decides this Voting Rights Act case at a perilous moment for the nation’s commitment to equal citizenship. It decides this case in an era of voting-rights retrenchment,” she wrote. “What is tragic here is that the court has (yet again) rewritten – in order to weaken – a statute that stands as a monument to America’s greatness, and protects against its basest impulses. What is tragic is that the court has damaged a statute designed to bring about ‘the end of discrimination in voting’.” More

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      Legal scholars publish letter calling for Stephen Breyer to retire from supreme court

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      A group of 18 legal academics has issued an extraordinary joint letter urging the US supreme court justice Stephen Breyer to retire so that Joe Biden can name his successor.The intervention came after Mitch McConnell, the Republican minority leader in the Senate, warned that Biden would not get a supreme court nominee confirmed in 2024 if Republicans regain control of the chamber and a vacancy arises.With conservatives holding a 6-3 majority on the court, progressive activists have been calling for the liberal Breyer, who at 82 is the oldest member on the bench, to step down this year while Democrats narrowly control the Senate.“It is time for Supreme Court Justice Stephen Breyer to announce his intent to retire,” the legal scholars say in a statement. “Breyer is a remarkable jurist, but with future control of a closely divided Senate uncertain, it is best for the country that President Biden have the opportunity to nominate a successor without delay.”The signatories include Niko Bowie of Harvard Law School, Erwin Chemerinsky and David Singh Grewal of the University of California, Berkeley, School of Law; Daniel Morales of the University of Houston Law Center; Samuel Moyn of Yale Law School, Zephyr Teachout of Fordham University; and Miranda Yaver of Oberlin College.The statement was released by Demand Justice, a progressive group mounting a concerted campaign to make Breyer consider his position, with everything from reproductive rights to voting rights and gun control potentially at stake.This week it is among 13 liberal groups, including Black Lives Matter, the Sunrise Movement and Women’s March, publishing an advertisement in prominent media outlets. It says: “Supreme Court Justice Stephen Breyer should immediately announce his intent to retire from the bench.“With future control of a closely divided Senate uncertain, President Biden must have the opportunity to nominate a successor without delay and fulfill his pledge to put the first Black woman on the Supreme Court.”The ad concludes: “If Breyer were replaced by an additional ultra-conservative justice, an even further-right Supreme Court would leave our democracy and the rights of marginalized communities at even greater risk. For the good of the country, now is the time to step aside.”While serving as majority leader, McConnell blocked Barack Obama from filling a vacancy left by the death of the conservative justice Antonin Scalia in February 2016, contending that it would be inappropriate to confirm a supreme court nominee during a presidential election year.McConnell and his fellow Senate Republicans refused to consider Obama’s nominee, Merrick Garland, who now serves as Biden’s attorney general. That enabled Donald Trump, the winner of the November 2016 election, to appoint the conservative justice Neil Gorsuch in 2017.Democrats accused McConnell of hypocrisy last year when he allowed the Senate to confirm Trump’s conservative nominee Amy Coney Barrett to replace the liberal justice Ruth Bader Ginsburg, who died in September, about six weeks before the 2020 presidential election.Christopher Kang, co-founder and chief counsel of Demand Justice, told the Guardian’s Politics Weekly Extra podcast: “I think certainly that looking back, and even at the time, a lot of people thought that the prudent thing for Justice Ginsburg to do to ensure her legacy would have been to retire.“I think this is the same conversation that a lot of progressives are having right now with respect to Justice Breyer, who is one of those three Democratic-appointed justices on the supreme court. He’s 82 years old. He could retire and we believe he should retire now and make way for the first Black woman to serve on the supreme court.Kang, who served in the Obama White House, added: “But it’s challenging because supreme court justices are nominated right now for life and the decision when to retire is completely up to them.“I was not part of the decision-making process at the time with respect to whether or not to reach out to Justice Ginsburg. I understand that the White House chose at the time not to do that but I think certainly looking at the impact of what happened, we could be in a very different place.” More