#there are significant number of very important events where martin could be fully removed and it would impact nothing

[navree]

i say this with all due respect, and so much love, cuz i do actually like him, but on what planet is martin an important name at the magnus institute? like, jonah created the place and stuck around for the entire time as its head over and over, jonathan is the lynchpin of the ritual/the archivist/the literal archive itself, martin is just A Guy!

[districofcolumbiaprelawland-blog]

The Significance Of the Shadow Docket In Evaluating Sowell’s “Greenhouse Effect”

By David B. Arnold, American University Class of 2021

March 9, 2021

The   image   of   the   Supreme   Court   in   the   popular   imagination   is   of   a   body   of   scholar-judges   who decide   cases   in   an   open   forum.   Whether   or   not   one   likes   the   current   justices,   or   even   the institution,   many   people   think   of   the   Court   as   a   somewhat   public   body.   Of   course,   most controversies   appealed   to   the   highest   court   are   never   heard,   because   they   do   not   raise   new   and important   constitutional   issues.   However,   there   is   a   third   way.   An   increasing   number   of   decisions are   reached   in   private   with   no   oral   argument   and   only   initial   briefing.   This   is   the melodramatically   named   “Shadow   Docket”. According   to   Mark   Walsh   of   the   American   Bar   Association,   the   recent   discomfort   of   many jurists   with   the   Supreme   Court   shadow   docket   is   the   way   in   which   it   was   used   by   the   Trump Administration.   In   the   later   years   of   the   Trump   Administration,   the   Solicitor   General’s   office would   often   try   to   go   directly   to   the   Supreme   Court   for   emergency   relief   issues   where   the government   had   lost   at   the   trial   court.   As   Justice   Sonia   Sotomayor   wrote   “Stay   applications   force the   court   to   consider   important   statutory   and   constitutional   questions   that   have   not   been ventilated   fully   in   the   lower   courts,   on   abbreviated   timetables   and   without   oral   argument,”   she wrote.   “They   upend   the   normal   appellate   process,   putting   a   thumb   on   the   scale   in   favor   of   the party   that   won   a   stay.”   [1].   This   is   an   unorthodox   remedy,   as   the   normal   path   would   be   an   appeal to   the   court   of   appeals   for   the   district   that   the   trial   had   occurred   in.   The   Trump   Administration actively   pursued   a   strategy   of   appointing   judges   who   it   saw   as   sympathetic   to   conservative values   and   an   extreme   view   of   the   extent   of   executive   power.   This   no   doubt   informed   the   shadow docket   strategy,   although   results   for   the   Trump   Administration   on   controversies   at   the   Supreme Court   was   very   mixed,   as   we   were   reminded   this   week   when   the   Court   handed   down   an   order   to Trump’s   accountancy   firm,   Mazers   LLC,   to   cooperate   with   the   New   York   Attorney   General’s investigation   into   Donald   Trump’s   conduct   regarding   his   tax   obligations,   in   effect   reiterating   a decision   from   May[2].   The   conservative   Supreme   Court   also   refused   to   hear   a   single   election based   challenge. 

Orders   and   memoranda   from   the   Supreme   Court   need   not   be   a   controversial   instrument   in   and   of themselves,   but   the   last   four   years   have   seen   increasingly   major   rulings   on   federal   policy   made by   summarily   written   orders,   not   always   signed,   and   often   with   the   vote   count   undisclosed. Texas v.   Pennsylvania (2020) ,    which   contained   a   theoretical   view   that   states   could   not   sue   each   other over   internal   voting   procedures,   an   important   doctrine   that   went   ascribed   to   no   one   [3].   However, the   more   mystifying   instances   are   cases   like    Archdiocese   v.   Cuomo (2020) which   contained   33 pages   of   varying   opinions   by   the   various   Justices   despite   only   the   appeal   and   the   response   having been   read[4].   Although   the   way   judges   vote   can   be   somewhat   predictable,   argument   can   be worthwhile   by   differentiating   the   case   from   earlier   precedent   or   bringing   up   novel   arguments.   It seems   somewhat   concerning   for   the   Court   to   issue   a   detailed   opinion   on   a   case   that   it   has   only analyzed   in   a   very   general   way.

While   the   Supreme   Court   may   seem   to   be   absolutely   untouchable,   Congress   can   affect   its procedure.   Recently,   there   has   been   a   bipartisan   push   on   the   House   Judiciary   COmmittee   to legislate   that   going   forward   decisions   have   to   be   signed   and   have   a   breakdown   of   the   votes   and some   brief   synopsis   of   the   reasoning   for   the   order[5].   This   would   be   useful   both   from   a transparency   perspective   and   by   creating   clearer   precedents   by   showing   the   judicial   reasoning. However,   it   also   raises   questions   about   what   exactly   the   Supreme   Court   owes   the   public.   The judiciary,   as   the   branch   that   “decides   what   the   law   is”   to   quote   the   great   Chief   Justice   John Marshall,   was   not   designed   to   be   accountable.   In    Federalist   No.   78    by   Alexander   Hamilton,   he editoralized   that,  

“The   complete   independence   of   the   courts   of   justice   is   peculiarly   essential   in   a   limited Constitution.   By   a   limited   Constitution,   I   understand   one   which   contains   certain   specified exceptions   to   the   legislative   authority;   such,   for   instance,   as   that   it   shall   pass   no   bills   of attainder,   no   ex-post-facto   laws,   and   the   like.”[6]

This   shows   an   original   intent   that   the   Supreme   Court   had   to   be   able   to   stand   against   the democratic   arms   of   the   government   when   they   were   acting   unconstitutionally.   The   Shadow Docket   is   uncomfortable   to   witness,   but   it   does   in   a   sense   protect   the   justices   from   popular pressure   over   tough   votes.   A   reasonable   person   might   ask   exactly   why   a   justice   of   the   Supreme Court   would   care   about   popular   pressure;   they   serve   for   life   or   during   the   duration   of   their   good behavior.   There   is   a   body   of   scholarship,   however,   that   promotes   the   idea   that   the   tendency   of especially   conservative   justices   to   make   uncharacteristic   votes   is   in   part   an   effort   to   win   the respect   of   the   educated   elite   in   the   media   and   legal   profession,   who   skew   somewhat   liberal. In   conservative   organizations,   for   instance   the   Federalist   Society,   there   is   often   talk   of   a “Greenhouse   Effect”[7].   This   is   in   reference   to   New   York   Times   Supreme   Court   correspondent Linda   Greenhouse,   who   is   often   perceived   by   conservatives   as   writing   in   a   way   to   gin   up pressure   in   the   legal   community   on   judges   to   vote   in   a   generally   liberal   direction.   An   example   of this   is   before   the   crucial   Obamacare   decision   in    King   v.   Burwell (2015) ,    ““[n]ot   only   the Affordable   Care   Act   but   the   court   itself   is   in   peril   as   a   result...The   fate   of   the   statute   hung   in   the balance   then   and   hangs   in   the   balance   today...   this   time,   so   does   the   honor   of   the   Supreme   Court” [8].   Assuming   the   Supreme   Court   is   open   to   this   kind   of   chiding   (and   that   is   the   core assumption),   these   are   powerful   words.    This   idea   was   initially   formulated   by   conservative economist   Thomas   Sowell,   and   has   some   adherence   among   jurists   and   judges. 

The   theory   has   critics.   If   there   is   such   a   thing   as   the   Greenhouse   Effect,   it   seems   to   exist   very selectively   for   some   progressive   priorities   and   not   at   all   for   others.   The   Supreme   Court   through the   entire   2000s   has   dealt   major   setbacks   to   antitrust   legislation,   environmental   protections,   and voting   rights.   Even   liberal   Justices    like   Elena   Kagan   and   Sonia   Sotomayor    have   been   relatively business   friendly   [9],   and   of   course   the   Supreme   Court   has   not   seen   fit   to   prevent   the reintrocuton   of   the   federal   death   penalty.   Commentators   who   say   the   Supreme   Court   is   becoming increasingly   liberal   often   only   focus   on   issues   like   abortion   or   gay   rights,   whereas   on   economic issues   or   controvesies   centered   around   racial   policies   (voting   rights,   affirmative   action)   the Supreme   Court   has   shown   itself   very   much   restrained. The   reason   the   Greenhouse   Effect   is   worth   mentioning   in   the   context   of   the   Shadow   Docket   is that   in   the   event   the   Supreme   Court   has   to   be   much   more   public   in   its   decision   making,   then what   will   happen   in   effect   is   that   it   will   become   falsifiable   to   a   much   greater   extent.    Afterall,   the pressure   exerted   by   journalists   and   activists   on   the   Supreme   Court   is   only   emotional,   no   effort has   ever   come   even   close   to   removing   a   Supreme   Court   justice.   Eliminating   the   Shadow   Docket would   lead   this   emotional   pressure   to   increase.   The   Greenhouse   Effect   hypothesis   leads   us   to   the conclusion   that   this   will   lead   to   a   noticeable   leftward   swing   at   the   high   court.   If   this   does   not come   to   pass,   we   can   safely   say   that   the   Greenhouse   hypothesis   lacks   validity. 

______________________________________________________________

1.Walsh,   Mark.   2021.   “The   Supreme   Court's   'Shadow   Docket'   Is   Drawing   Increasing   Scrutiny.” ABA   Journal.   Accessed   February   27. https://www.abajournal.com/web/article/scotus-shadow-docket-draws-increasing-scrutiny .

2.   Sisak,   Michael.   2021.   Associated   Press   News. https://apnews.com/article/manhattan-prosecutor-trump-tax-records-87f675d7ae8e24fbf2e8f33c4 80869d6 .

3.    Texas   v.   Pennsylvania (2020),    Docket   for   22O155.   Accessed   February   27. https://www.supremecourt.gov/docket/docketfiles/html/public/22o155.html .

4.   Wermiel,   Stephen.   2020.   “On   the   Supreme   Court's   Shadow   Docket,   the   Steady   Volume   of Pandemic   Cases   Continues.”   SCOTUSblog. https://www.scotusblog.com/2020/12/on-the-supreme-courts-shadow-docket-the-steady-volume- of-pandemic-cases-continues/ .

5.   Romoser,   James.   2021.   “Lawmakers   Consider   Nudging   Supreme   Court   toward   More Transparency   on   the   Shadow   Docket.”   SCOTUSblog. https://www.scotusblog.com/2021/02/lawmakers-consider-nudging-supreme-court-toward-more- transparency-on-the-shadow-docket/ .

6.   Hamilton,   Alexander.   2021.   The   Avalon   Project   :   Federalist   No   78.   Yale   University.   Accessed February   27.   https://avalon.law.yale.edu/18th_century/fed78.asp.

7.   Tolchin,   Martin.   1992.   “Press   Is   Condemned   By   a   Federal   Judge   For   Court   Coverage.”   The New   York   Times.   The   New   York   Times. https://www.nytimes.com/1992/06/15/us/press-is-condemned-by-a-federal-judge-for-court-cover age.html .

8.   Andrews,   Cory   L.   2015.   “Linda   Greenhouse's   Blatant   Effort   To   Invoke   'Greenhouse   Effect'   In Affordable   Care   Act   Case   Fails.”   Forbes.   Forbes   Magazine. https://www.forbes.com/sites/wlf/2015/02/06/linda-greenhouses-blatant-effort-to-invoke-greenho use-effect-in-affordable-care-act-case-fails/?sh=14d330382318 .

9.Richard   A.   Posner,   Lee   Epstein   &   William   M.   Landes,   "How   Business   Fares   in   the   Supreme Court,"   97   Minnesota   Law   Review   1431 (2013)