Keeping the Republic

?Introduction

The United States Supreme Court is the highest court in the land and plays a crucial role in shaping the country's laws and policies. However, there have been recent concerns about corruption in the Court, including revelations of a shadow docket and influence lobby. This article will examine these issues and discuss the implications for the Court's integrity and legitimacy. No political party should guide the court's decisions because they represent all the people, but it is the political parties that elect them. Mitch McConnell's greatest legacy as speaker of the Senate has been to control the nomination process for judicial candidates. However, lack of transparency is eroding trust in the system which is the court's main currency.

The Shadow Docket

The shadow docket refers to emergency actions taken by the Supreme Court that do not go through the full briefing and argument process of a regular case [1]. These orders and rulings are often made without explanation or transparency and can have significant implications for the law and public policy [2]. Critics argue that the shadow docket undermines the Court's legitimacy and transparency, as it allows the justices to make important decisions without full public scrutiny [3]. Moreover, it has been suggested that the shadow docket favors certain special-interest parties, including lobbyists and officials [4].

The use of the shadow docket by the Supreme Court has changed over time. Here are some ways in which it has changed:

- Expansion of the Shadow Docket's Role: The shadow docket was originally used for procedural matters, such as scheduling and issuing injunctions. However, its role has expanded, and the Court has started to use it to decide cases without full briefing and oral argument [5].

- Increasing Use: The U.S. Supreme Court is increasingly using the shadow docket to settle cases where decisions are handed down without any public argument or briefing [6]. The number and importance of these decisions have increased, which has raised concerns about the lack of transparency and accountability.

- Lack of Transparency: The shadow docket has been criticized for lacking transparency and explanation. The Court's decisions on key issues are made with zero transparency or explanation, which makes it difficult for the public to understand and evaluate them [7].

- Controversial Decisions: The shadow docket has been used to issue significant rulings that change the rights and responsibilities of millions of Americans without the normal procedures of full briefing, oral argument, and detailed written opinions [8]. Some of these decisions have been controversial and have raised concerns about the Court's legitimacy and transparency.

The shadow docket has been used to influence policy in several ways. Some examples are:

- Requests to halt a lower court's orders: These requests can have high stakes, such as reinstating a law after a lower court has struck it down [9].

- Settling cases without any public argument or briefing: The U.S. Supreme Court is increasingly using the shadow docket to settle cases where decisions are handed down without any public argument or briefing [10].

- Emergency actions on cases not on the official docket: The shadow docket is the title of a new book by Stephen Vladeck, a University of Texas law professor, that explores the Supreme Court's growing influence on the country through several emergency actions on cases not on the official docket [11].

- Making rulings in a wide array of cases without full public scrutiny: The justices have increasingly relied on the shadow docket to make rulings in a wide array of cases without full public scrutiny, which has raised concerns about transparency and accountability [12].

These examples suggest that the shadow docket can have significant implications for policy and public life and that its use has been the subject of controversy and debate.

The shadow docket has been used to decide several controversial cases. Here are some examples:

- Texas Abortion Case: The Supreme Court's decision to leave in place a Texas law that bars most abortions in the state was part of its so-called shadow docket [13]. This decision was criticized for allowing Texas to flout the 1973 ruling in Roe v. Wade and for undermining the Court's legitimacy [14].

- Texas Abortion Ban: The Supreme Court allowed Texas' controversial abortion ban to take effect through the shadow docket [15]. The law effectively bans abortions after six weeks of pregnancy.

- SB 8 Texas Abortion Law: The U.S. Supreme Court is allowing abortion providers to challenge the restrictive Texas abortion law and dismisses a Justice Department challenge to the law. This decision was made through the shadow docket [16].

- Remain in Mexico Border Policy: The high court issued an order on the shadow docket reinstating the Trump-era "Remain in Mexico" border policy [17].

- Federal Ban on Evictions: The high court issued an order on the shadow docket lifting the Biden administration's federal ban on evictions [18].

These cases suggest that the shadow docket can be used to decide significant and controversial issues, sometimes without full public scrutiny or explanation.

Lawmakers have responded to the Supreme Court's use of the shadow docket in different ways. Here are some examples:

- Criticism: Lawmakers have criticized the Court's use of the shadow docket for lacking transparency and explanation, rushing important decisions, and serving a conservative agenda [19][20]. Some lawmakers have expressed concern about the growing number and sweep of shadow docket decisions [21].

- Legislative Proposals: Some lawmakers have proposed legislative solutions to address the problems associated with the shadow docket. For example, the Judicial Procedures Reform Bill of 2021, introduced in the House of Representatives, would require the Supreme Court to provide written opinions for shadow docket decisions and to disclose how each justice voted [22].

- Judicial Reform: Some lawmakers have called for judicial reform to address the problems associated with the shadow docket. For example, some have called for expanding the number of justices on the Supreme Court to reduce the influence of individual justices and to promote transparency and accountability [23].

- Amicus Briefs: Lawmakers have filed amicus briefs in shadow docket cases to express their views on the issues at stake. For example, in the Texas abortion case, 113 members of Congress filed an amicus brief urging the Court to strike down the Texas law [24].

These responses suggest that lawmakers have been critical of the Supreme Court's use of the shadow docket and have proposed legislative and judicial solutions to address the problems associated with it.

Influence Lobby

There have also been concerns about the influence of money and special interest groups on the Supreme Court's decisions [5]. It has been suggested that some justices have close ties to conservative groups and have been swayed by their interests and agendas [5]. This raises questions about the impartiality and independence of the Court and its ability to make decisions based solely on legal principles and the Constitution.

The lack of an ethics code specific to the Supreme Court justices has raised ethical concerns and led to calls for reforms. Here are some of the ways that the Supreme Court justices' lack of ethical standards affects the Court:

- The lack of an ethics code specific to the Supreme Court justices has become a prominent complaint on Capitol Hill, where some lawmakers have argued that the Court should have the same ethical standards as other federal judges [25].

- Critics argue that the Court's lack of an ethics code has contributed to a perception that the justices are not taking their ethical responsibilities seriously enough, which has led to concerns about the integrity of the Court [26].

- The lack of an ethics code means that the Court has no binding code of conduct, which has led some to argue that the Court has the weakest ethics rules in the federal government [27].

- Some experts have argued that the Court needs an internal mechanism for checking ethical obligations, such as a designated official to oversee potential conflicts and public complaints [28].

- The lack of an ethics code has also led to concerns about transparency and accountability, as there is no clear framework for how the justices should handle potential conflicts of interest or ethical violations [29].

Overall, the lack of an ethics code specific to the Supreme Court justices has raised concerns about the Court's integrity, transparency, and accountability, and has led to calls for reforms to strengthen the Court's ethical standards.

Arguments for establishing a binding ethics code for Supreme Court justices include:

- Ensuring that Supreme Court justices are held to the same ethical standards as other federal judges [30][31].

- Increasing transparency and accountability by providing clear guidelines for how justices should handle potential conflicts of interest and ethical violations [32][33].

- Strengthening the legitimacy and integrity of the Court by reducing concerns about conflicts of interest and other ethical issues [34].

- Providing a mechanism for enforcing ethical standards and addressing potential violations, which can help maintain public trust in the Court [35][36].

Arguments against establishing a binding ethics code for Supreme Court justices include:

- Concerns about the separation of powers and the potential for Congress to interfere with the Court's independence [37][38].

- The unique role of the Supreme Court in interpreting laws and the Constitution, which some argue requires more flexibility in ethical standards [39][40].

- The difficulty of enforcing a binding ethics code on the Supreme Court, given the Court's status as the highest court in the land [41][42].

- The belief that voluntary compliance with ethical guidelines is sufficient and that a binding ethics code would not necessarily lead to better ethical behavior among the justices [43].

Overall, the debate over whether to establish a binding ethics code for Supreme Court justices is complex, and involves balancing concerns about transparency, accountability, and independence. While some argue that a binding ethics code would help strengthen the legitimacy of the Court and ensure that justices are held to the same ethical standards as other federal judges, others believe that voluntary compliance with ethical guidelines is sufficient and that a binding ethics code could interfere with the Court's ability to fulfill its unique role in interpreting the law.

Implications

The revelations of the shadow docket and influence lobby have significant implications for the Supreme Court's legitimacy and integrity. The Court's decisions are supposed to be based on legal principles and the Constitution, not on personal interests or political agendas. The shadow docket and influence lobby raise concerns about the Court's ability to fulfill its role as an impartial arbiter of the law [44]. Moreover, the lack of transparency and accountability in the shadow docket undermines the public's trust in the Court and its decisions [45].

Conclusion

The revelations of the shadow docket and influence lobby highlight the need for greater transparency and accountability in the Supreme Court's decision-making process. The impartiality will destroy the court's credibility if the justices do not separate themselves from liberal or conservative external influences. The Court's decisions should be based solely on legal principles and the Constitution, and not on personal interests or political agendas. It is vital for Congress and other stakeholders (US Citizens) to address these issues to ensure that the Supreme Court remains a fair and impartial arbiter of the law. A strong judiciary based on the rule of law is critical for our democracy. Upon exiting the Constitutional Convention, Benjamin Franklin was approached by a group of citizens asking what sort of government the delegates had created. His answer was: "A republic (a state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president rather than a monarch), if you can keep it."

Citations:

[1] https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket

[2] https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/scotus-shadow-docket-under-review-by-house-reps/

[3] https://jacobin.com/2022/04/supreme-court-shadow-docket-roberts-transparency

[4] https://www.rollingstone.com/politics/political-commentary/supreme-court-shadow-docket-conservative-agenda-1335473/

[5] https://time.com/6280539/supreme-court-shadow-docket-shaping-america/

[6] https://www.ny1.com/nyc/all-boroughs/national-politics/2021/09/29/days-before-new-supreme-court-term--lawmakers-spar-on-justices--use-of--shadow-docket-

[7] https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket

[8] https://www.nytimes.com/2021/09/02/us/politics/supreme-court-shadow-docket-texas-abortion.html

[9] https://www.washingtonpost.com/outlook/2021/09/03/shadow-docket-elena-kagan-abortion/

[10] https://abcnews.go.com/US/texas-awaits-supreme-court-move-restrictive-abortion-law/story?id=79742044

[11] https://www.npr.org/2021/12/10/1063025466/read-key-excerpts-supreme-court-ruling-texas-abortion-case-sb-8

[12] https://www.cbsnews.com/news/supreme-court-texas-abortion-ban-shadow-docket/

[13] https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket

[14] https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/scotus-shadow-docket-under-review-by-house-reps/

[15] https://www.pbs.org/newshour/show/new-book-shadow-docket-explores-supreme-courts-growing-influence-on-american-law

[16] https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1961&context=public_law_and_legal_theory

[17] https://www.cnn.com/2022/04/07/politics/shadow-docket-supreme-court/index.html

[18] https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1961&context=public_law_and_legal_theory

[19] https://www.whitehouse.senate.gov/news/op-eds/justice-alito-complains-but-the-evidence-is-clear-this-supreme-court-was-built-by-dark-money

[20] https://www.reuters.com/legal/government/us-supreme-courts-shadow-docket-favored-religion-trump-2021-07-28/

[21] https://washingtonmonthly.com/2022/11/28/a-rare-inside-look-at-our-corrupt-supreme-court/

[22] https://www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/feb-23-wl/scotus-ethics-0223wl/

[23] https://sgp.fas.org/crs/misc/LSB10255.pdf

[24] https://www.nytimes.com/2023/02/09/us/supreme-court-ethics-code.html

[25] https://www.forbes.com/sites/alisondurkee/2023/05/02/here-are-the-recent-controversies-supreme-court-justices-have-been-caught-up-in-as-senate-hears-case-for-code-of-ethics/

By Perplexity at https://www.perplexity.ai/search/c98b9941-e85d-471f-9db9-58eb2ded719d