With no transparency, no visible process

Last week Joan McCarter of Daily Kos wrote about what the conservatives on the Supreme Court have been doing lately. The Supremes have always had a “shadow docket,” a term coined by Will Baude, a University of Chicago law professor. McCarter explained:

The shadow docket has always been there, where the court issues rulings (without scheduling hearings) that are often unsigned and often consist of just one or two sentences. But the current iteration of the conservative court led by Chief Justice John Roberts has been picking up the pace of those shadow docket cases.

The shadow docket has been used for such things as reversing a lower court stay or imposing a stay while an appeal is working through the court system. Usual beneficiaries have been the nasty guy, states seeking the death penalty, and religious organizations. The problem is that it is being used to “issue significant rulings that change the rights and responsibilities of millions of Americans” without disclosing court reasoning and which justice voted which way. If this was a liberal court Republicans would accuse it of being “activist.” McCarter reviewed a recent offense. The order was an injunction against the New York state law banning evictions during the pandemic. The Supremes sided with the landlords. At least in this case liberal Justice Stephen Breyer added a dissent joined by the other two liberals. McCarter concluded:

The court's legitimacy is most definitely at issue here. The regular process decisions they issued this term were radical and dangerous. The cases they agreed to hear next session are perhaps even more so. Now we also have to worry about the cases that don't wend their way through the trial process through the district and appeals courts. The court can take an emergency order on the shadow docket and with no transparency, no visible process, reshape our lives. That can't stand. The court has to be reformed to keep this radical majority on the court from doing further damage. Expansion is the most expedient way to do so.

In a post dated yesterday Gabe Ortiz of Kos wrote about an even worse offense committed by the conservative Supremes. The nasty guy implemented Migrant Protection Protocols, otherwise known as the Remain in Mexico policy. Those seeking asylum in the US had the live in Mexico while waiting for their court date. While in Mexico they lived in squalid camps and could be victims of kidnapping and murder. Legal scholars routinely declared it to be unlawful and a humanitarian disaster. Biden, naturally, reversed the policy. Republican governors on the Mexico border sued. A lower court judge (appointed by the nasty guy) demanded the policy be reinstated while getting dozens of facts wrong and wildly misstating the law. And the Supremes (nominally between terms) agreed with the lower court judge, saying Biden was required to reimplement an unlawful policy. That now means that lower court judge now has the power to hold the Biden administration in contempt if he decides they haven’t acted in good faith. I didn’t follow the entire explanation, so I’ll leave that to you and your interest. Ian Millhiser of Slate wrote:

The decision upends the balance of power between the elected branches and the judiciary. It gives a right-wing judge extraordinary power to supervise sensitive diplomatic negotiations. With this order, Republican-appointed judges are claiming the power to direct U.S. foreign policy—and don’t even feel obligated to explain themselves.

Ortiz then discussed how Biden might work around this order. He’ll need to do so carefully, but he must. A few hours after Ortiz posted his report, McCarter added commentary. She wrote that the order from the Supremes is way too vague. It doesn’t identify the violation Biden is supposed to fix, leaving that to the lower judge. McCarter wrote:

The radical and unlawful Supreme Court decision handed down Tuesday on immigration makes reforming that court all the more urgent, before they can do more damage to an increasingly fragile system of government. ... All of that is bad, and it is very much an outgrowth of the Court's use of the shadow docket: No one has to sign their name to the order and they don't have to provide legal justifications and weight of precedent that they must address in decisions resulting from regular process. They increasingly are choosing to take these hot-button political cases—religious exemptions to COVID restrictions, the pandemic eviction moratorium, this immigration case—on an "emergency" basis that allows them to circumvent full proceedings. This is a really radical decision from an activist court that is acting in an entirely political way.

Congress must and can fix this, though that requires getting rid of the filibuster. Turning to the pandemic. McCarter wrote about how the unvaccinated are breaking everything. They’re breaking health care workers. The workers are feeling worn down even more during this surge because the disease is preventable. That prompted 75 doctors in South Florida to walk out in protest. In many other hospitals walkouts have been permanent. They’re breaking the health care system. An analysis by the Kaiser Family Fund found unvaccinated people cost the health care system $2 billion in just June and July. They are killing other people by so overloading hospitals that those with other kinds of severe medical issues, such as cancer, can’t get treated. In the early days of writing this blog I learned when someone shouts about freedom it is important to ask: Freedom for whom? Kerry Eleveld of Kos wrote about Govs Abbot and Costello (um, DeathSentence) and their sick ruse of declaring personal freedom and pretending it means freedom for everyone. That prompted me to think about that question again. Freedom to not wear a mask and to not get vaccinated robs children and immunocompromised of their freedom, their health, and sometimes even their life. When someone rants about demanding to preserve personal freedom, such as freedom of religion, they are really demanding to preserve the freedom to discriminate and oppress. I’m not the only one who has come to this conclusion. Michael Harriot, writing in The Root, agrees. Even though the word “freedom” appears only once in the Constitution white people will insert the word into a sentence to sound more patriotic and to justify such things as pro-gun legislation and police brutality. Harriot provided a few examples of anti-mask rallies proclaiming freedom.

There’s absolutely nothing wrong with asserting one’s rights. These people absolutely have the right to not wear masks or refuse vaccines. That’s not what they’re arguing. They’re arguing that they have the right to ignore science at the peril of others. Their kids’ right to go to facemask-free schools can’t infringe upon the rights of parents who don’t want their children to die coughing up coronavirus phlegm. They are insisting that their personal liberty is not just worth their health, it’s more important than your right to choose to be healthy. It’s the ultimate act of privilege because what they are essentially saying is: “Give me liberty or give you death.” ... For white people, living in America is like having skin that can’t burn. If you didn’t have to worry about being consumed by flames, you might think fire codes are overregulated. Why should your hard-earned money be spent on a fire extinguisher if you’re fireproof? ... They are impervious to fire, so we can’t force them to care about the people who aren’t. But we also can’t forget the fact that the role of government is not just to protect our individual rights; it also must protect our collective rights. ... The reason every individual has the right to vote is that a true democracy represents the collective, not just individuals. You don’t pay school taxes so that your kid can get an education; you pay them so you can live in an educated community. You don’t pay the cops to keep you safe. You pay police departments to keep your community safe.

Harriot likes freedoms. “When I get some, I’ll let you know.”