Amy Coney Barrett Then: ‘Read The Opinion!’ ACB Now: Inappropriate To Expect Supreme Court To Explain Decisions

Today, the Supreme Court sent Justices Elena Kagan and Amy Coney Barrett to Capitol Hill to testify about the judiciary’s request for a significant increase in security funding. Threats against federal judges – mostly lower court judges ruling against the Trump administration — are well documented, and the federal judiciary requires roughly 10 percent more funding to address the threat. Although, if they are honest, the budget increase is not only for the personal security of the judges, as it also covers improvements to the courts. terrible cyber security. But it’s much easier to sell to focus protecting the judges by violent extremists than to point out that PACER sucks.

Given that Supreme Court justices don’t appear before Congress every day — in part because Chief Justice Roberts takes the position of testifying in public it is a violation of the separation of powers — the hearing touched on a variety of topics that judges rarely have to talk about. Including the infamous shadow docks.

On this topic, Alex Aronson i Responsibility of the Court noted this key part of Barrett’s testimony:

In 2022, Justice Barrett admonished the public to “read the opinion”. Speaking at the Ronald Reagan Library, she criticized those who would accuse the Supreme Court of imposing its bare-bones policy preferences that a reading of the Court’s considered opinions would illuminate their deep and abiding commitment to the neutral application of the rule of law. Today, her attitude towards citizens who want to understand the reasoning of the Supreme Court is:

Golly, it was like she was spouting disingenuous nonsense the whole time!

For the uninitiated, shadow dockets is the informal name for the Supreme Court’s practice of issuing increasingly expansive orders without written arguments or explanations. It’s a tactic we’ve recently learned grew out of the boss’s desire for it Obama-era environmental regulations despite lacking a legal justificationand has since metastasized into what Justice Jackson is described as Calvinball – fictional game from the comic strip Calvin & Hobbes where the rules are constantly changing.

When Barrett tried to light up the place with her “read the opinion” speech, she added “(d)oes (the decision) read like something that was simply based on results and designed to impose the political preferences of the majority, or does this seem like it’s actually an honest effort and a persuasive effort, even if you ultimately disagree, to determine what the Constitution requires and preemptively? fully aware that the Court was already relying heavily on inexplicable docket orders shade on issues ranging from abortion to vaccinations to voting rights.

Four years and many unsigned emergency orders later, the job is gone and the field is how dare you ask us?

In fairness to Judge Barrett, there is a reason why the Court has historically done little to explain its shadow filing orders. When the use of the shadow archive more accurately fits the title “emergency docket”, these decisions amounted to glorified preliminary injunctions. Write too much about a case no one briefed, with a record no one built, and the Court could accidentally send a premature and inappropriate signal about the meaning of the merits. As one judge recently wrote of the practice, it is designed to strike a balance between “the closed risk of saying too much against the transparency cost of saying too little.”

That was Justice Barrett incidentally.

But this argument does not withstand contact with reality. Avoiding a risk of deadlock only matters if everyone agrees that these orders are not binding beyond the parties to the case and exist only to preserve the status quo. Judge Gorsuch did his best to disabuse us of that notion. In a separate opinion, Gorsuch lamented that justices “may sometimes disagree with this Court’s rulings, but they are never free to challenge them,” referring to lower court justices who continue to follow existing case law instead of checking new precedent between the lines of one-sentence shadow docket orders. In response to this aggressive expansion of the shadow docket authority, Judge William Young apologized—though “passively aggressively scoffing” is probably more accurate—on the record that he “simply didn’t realize that the orders in the emergency docket were precedential.”

Which, of course, no one did because they had never been before.

The cases that Barrett’s Republican majority chose to place under the cloak of the shadow docket further undermine this it is just a temporary order canard. Instead of trying to preserve the status quo, the majority aggressively used shadow orders to bless the Trump administration’s actions over the years—indeed, decades – of the existing precedent. As the Court has repeatedly established this Term, the harm of the Trump administration not being able to do whatever it wants, whenever it wants is irreparable harm even if it is taking unprecedented action.

The majority’s shadow strategy is designed, to borrow from Barrett’s past remarks, to be “simply results-driven and designed to impose the policy preferences of the majority” without having to make “an honest effort and persuasive effort”. Part of it is a cynical ploy to give the Trump administration leeway while maintaining current precedent so they can turn around and tell a future democratic administration that these were just temporary orders.

But more fundamentally, conservative judges are sick and tired of accountability. They threw a collective fit when they refused to explain themselves accidentally left a gap on which the objection was thrown. Sam Alito broke the decorum to complain from the bench when Justice Sotomayor dismissed his opinion a few weeks ago. And Justice Barrett she complained in her memories that she had to spend her holidays defending Dobbs decision for her brother-in-law. It’s hard to defend your political priorities in the face of overwhelming legal precedent. They don’t like it.

Sorry for Love story: eternal standing means never having to speak your mind.

But, as Aronson notes, “reasoning is the whole point.” Judge Michael Luttig – a conservative’s conservative if ever there was one – did the same at the Rule of Law Association conference:

The Supreme Court has no power at all in our system and government, except that power that comes to it based on (its) reasoned opinions of constitutional law. Whenever the Supreme Court acts without opinions of law – at all – let alone reasoned opinions of law. It’s acting illegally, period. It doesn’t have the power of the bag. It does not have the power of the sword. The only power she has, and the only power she should exercise on behalf of the American people, is the power of her persuasion.

Judge Nancy Gertner put it even more bluntly, explaining that the shadow docket has “all the formality of notes on a napkin.”

This brings us back to the bailout funds that Kagan and Barrett came to Congress for in the first place. The Supreme Court’s steadfast refusal to explain its rulings while ultimately overturning lower court judges’ rulings against the Trump administration inspired 12 justices to squarely blame the Supreme Court for its role in directing violent threats against the judiciary. Every time the Supreme Court overturns crystal clear precedent without deigning to explain, they leave a lower court judge looking like they were just “out to get Trump.” And while violence is hardly the province of one end of the political spectrum, the boys who stormed the Capitol seeking to hang Mike Pence are more likely to escalate their threats than a soccer mom with a peace sign on her SUV.

The threats facing judges are real. Justice Barrett and her fellow travelers have made the situation worse because they care more about imposing the political preferences of their majority. But maybe they will get some extra money for more federal marshals. Much easier than explaining yourself.

Earlier: Supreme Court Shadow Docket Scam Collides With Reality
Circuit judges fight to save the rule of law, while the DOJ and the Supreme Court snicker
Supreme Court Shadow Docket Scam Collides With Reality
Supreme Court simply ‘Calvinball jurisprudence with a twist,’ writes Justice Jackson
Supreme Court to Lower Courts: Ignore Current Binding Precedent, Follow Our Inexplicable Shadow Tremors Instead
Amy Coney Barrett is forced to discuss the destruction of constitutional precedent during a family road trip
Shadow Docket memos be damned. So of course the right is talking about the leak.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking like a lawyer. Feel free to email any tips, questions or comments. Follow him Twitter OR Bluesky if you’re interested in law, politics and a healthy dose of college sports news.