The Birth of the Shadow Docket: Inside the Supreme Court's 2016 Memos on Presidential Power
Confidential memos exchanged among the Supreme Court justices in 2016 shed light on their decision-making process in cases involving presidential power. The New York Times is revealing seven of these memos, which reveal a significant shift in the court's approach to handling major cases on presidential power. The justices debated and ultimately issued emergency orders without the usual careful consideration and reasoned opinions, leading to what critics now call the "shadow docket."
The memos show the justices considering unprecedented actions, such as halting a major climate change initiative by President Obama without waiting for lower courts to address its lawfulness. This decision, made along partisan lines, set a new precedent for emergency orders based on abbreviated briefing and minimal deliberation, a departure from the court's usual procedures.
Chief Justice John G. Roberts Jr.'s demeanor in the memos contrasts with his public image, revealing impatience and frustration with his colleagues and the Environmental Protection Agency. The memos also highlight the tension between President Obama and Chief Justice Roberts, with the chief justice closely monitoring the administration's actions to ensure the court's position was not undermined.
The memos, while formal and legalistic, show a departure from the court's usual meticulous approach. Justices address each other informally, express irritation, and request more time for deliberation. The 2016 papers reveal a focus on checking President Obama's perceived overreach, with conservative justices using the shadow docket to support presidential actions in the Trump era.
The decision to intervene in the Obama administration's emissions plan, challenged by Republican-led states and industry groups, was driven by Chief Justice Roberts' concern that immediate action was necessary to prevent states and businesses from committing resources to comply with the plan. The memos, spanning just five days, do not mention climate change or acknowledge the implications of the court's new approach.
The release of these memos by The New York Times sheds light on the birth of the shadow docket and the internal dynamics of the Supreme Court during a pivotal moment in its history. The justices' shift towards issuing emergency orders with limited deliberation has raised concerns about transparency and the court's decision-making process.