Federal Judge Survey: Warns of Judicial Crisis, Faults SCOTUS Emergency Orders
nytimes.com
nytimes.com
It's just a few people anonymously pronouncing decisions. How is that a legitimate judicial decision at all? Is that authority within their Constitutional powers? 'Court' and 'judicial' have specific meanings - it's not 'whatever a judge does', I would think.
I'd be interested in any lawyers commenting on why people with legal expertise don't make that argument.
Yes. This is everything the Constitution has to say on the Court [1].
It would take a simple act of Congress to regulate the emergency docket.
[1] https://constitution.congress.gov/constitution/article-3/
I don't think there is a definition of judicial power that exempts bench orders.
When a judge issues a preliminary injunction, for example, both parties have a chance to make their arguments, and it's all done in public, and the judge issuing the order puts their name and reasoning on it.
Courts do have rules; judges have rules. It's not just 'whatever a judge thinks'; the citizens of the democracy assign certain powers to the judges for the good of the people they serve; the rules of procedure, etc. have a long history. The Shadow Docket rulings aren't judicial process, in many respects, whether or not they get away with it.
Those rules are set first by the Constitution, next by the Congress and finally by SCOTUS.
I hate the emergency docket. But it's hard to argue it's somehow illegal.
> the citizens of the democracy assign certain powers to the judges for the good of the people they serve
We're in a republic. To the extent the courts have a core Constitutional role, it's in protecting the minority from the will of the majority.
https://www.congress.gov/crs-product/R48250
https://www.law.cornell.edu/constitution-conan/article-3/sec...
Most federal-court decisions (and many state-court decisions) are made without hearings in the sense of oral presentations. (Evidentiary matters are an exception, and essentially all such matters are done, or should be done, in live hearings. Note that this doesn't include matters like summary judgment, in which the point is not to weigh the evidence, but to determine whether it's even necessary to do so.)
In fact, most appellate court cases are resolved without oral argument — not a single live court appearance in the entire appellate process.
> … without hearing any arguments (are there even the arguments that typically accompany preliminary injunctions?, …
Well, see above regarding live oral arguments. But SCOTUS still "hears" the arguments of both sides on the papers. Except in rare cases of ex parte emergencies, the other side always gets a meaningful opportunity to respond and be "heard": that's basic procedural due process under the Fifth and Fourteenth Amendments.
> … and without an open decision-making process - no vote, no written analysis of the facts and law, etc. It's just a few people anonymously pronouncing decisions. …
The process is open in the sense that all or almost all of the filings (and hence party positions and arguments) are available to the public, as are the Court's orders/decisions.
Courts speak through their orders (and appellate courts explain their orders in their opinions). Neither the parties nor members of the public are typically privy to a trial judge's internal thought process, apart from what ends up in the judge's order. And in the case of appellate courts (whether SCOTUS or otherwise) the group decision-making and voting typically happens in a private gathering of the deciding judges, called a conference. Not even the judges' judicial clerks are allowed to attend that.
Good appellate-court opinions (and good trial-court orders) will explain the reasoning behind the decision. My understanding is that virtually all of even the shadow-docket orders contain at least some reasoning (whether or not any of us, or any of the other Justices, agree with that reasoning is beside the point). And note that in some jurisdictions — Florida, for example — appellate decisions need not be explained at all! (In Florida, the district courts of appeal are the intermediate appellate courts but are intended to be courts of last resort in most situations; and they can, and often do, resolve cases with one-page decisions that say only "Per curiam: Affirmed.")
True, shadow-docket matters have less-thorough reasoning than a full merits opinion would have; but that's because they are, in large part, interlocutory matters — intermediate issues on the way to a final consideration of the appellate merits.
That said, the more-cursory and time-constrained nature of those matters and orders certainly does call into question whether they should be (let alone must be) followed as binding precedent under the principle of stare decisis, as many Justices, judges, lawyers, and lay commentators have observed.
> … How is that a legitimate judicial decision at all? …
See above.
> … Is that authority within their Constitutional powers?
Yes, but probably subject to some control by the Legislative Branch (although that is arguable and uncertain). Although the Supreme Court's power to say what the law is, is not expressly provided for in the Constitution, we generally cite Marbury v. Madison for the principle that it is an inherent power of courts.
> 'Court' and 'judicial' have specific meanings - it's not 'whatever a judge does', I would think.
True in principle. But judges are (still) human, and quite adept at finding some grounding in some authority to achieve the result they prefer.
(Source: I practice federal and state appellate litigation in Florida and elsewhere. Obviously none of this should be construed as legal advice.)
(By 'open', I didn't mean live, necessarily. Open like software :). )
To reiterate, your response is great and much appreciated.
> But SCOTUS still "hears" the arguments of both sides on the papers. Except in rare cases of ex parte emergencies, the other side always gets a meaningful opportunity to respond and be "heard": that's basic procedural due process under the Fifth and Fourteenth Amendments.
So for the shadow docket, SCOTUS accepts fresh filings from both parties? Or do they only review the existing case from the lower courts.
> Neither the parties nor members of the public are typically privy to a trial judge's internal thought process, apart from what ends up in the judge's order. And in the case of appellate courts (whether SCOTUS or otherwise) the group decision-making and voting typically happens in a private gathering of the deciding judges, called a conference. Not even the judges' judicial clerks are allowed to attend that.
I mean that, outside the shadow docket, votes are public - we know which judge voted which way. Shadow docket rulings don't reveal each judge's votes, if I understand correctly, though if there are objections they can have clear implications.
> My understanding is that virtually all of even the shadow-docket orders contain at least some reasoning (whether or not any of us, or any of the other Justices, agree with that reasoning is beside the point).
A major complaint from lower court judges, and others, is that the reasoning is very brief and also vague - the lower court judges don't know what is meant or how to apply them.
> But judges are (still) human, and quite adept at finding some grounding in some authority to achieve the result they prefer.
I've noticed.
I wonder if lower courts will start following SCOTUS's example and issue their own 'emergency docket' rulings.