How to Deliberate on the Shadow Docket

Or, Are Critics Seeing Shadows?

The New York Times has published confidential documents bearing on the Supreme Court’s 2016 decision to block President Obama’s Clean Power Plan. I generally share the sentiments expressed by Jack Goldsmith and Will Baude. In short, the breathless reporting does not line up with the content of the memos.

Here, I would like to remark on one specific feature of the commentary—namely, the idea that the justices didn’t devote enough of their decisional resources to this case.

Different NYT articles maintain that the leaked documents reflected “nothing like the court’s usual painstaking work” and that they contain a “blizzard of memos” spanning five days and authored by six justices. These descriptions are in tension with one another, and they also fail to acknowledge that important judicial decisions are frequently made under a wide range of procedures and circumstances.

Start with the memos themselves. Even some Supreme Court opinions on the plenary merits docket are shorter than the total of the published memos, see eg here, and such opinions often issue without the internal circulation of significant legal correspondence.

In addition, the memos hardly represent the sum of the justices’ deliberations. We do not even know that we have all the memos. And surely there were additional conversations, internal chambers memos, and so forth. There was also substantial, high-quality briefing before the justices, as the Chief Justice noted.

The deliberations must also be considered in light of the conspicuous fact that the Court declined to issue a precedential opinion. Much of the effort that goes into judging involves the crafting of precedent, especially at the Supreme Court. That work does not arise when there is no published opinion.

By declining to issue an explanatory opinion, the justices reduced the importance and even the meaning of what they had done. They left themselves more room for changing course or doubling back. And they made it harder for litigants or lower courts to invoke the Court’s ruling.

The Court’s lack of explanation, in other words, is self-empowering in some ways but self-disempowering in other ways. Here is another example of that duality: by withholding reasons, the justices made it harder to pick apart their rationale; but they also ceded to critics the ability to characterize a salient ruling.

A serious effort at criticizing the Court’s decision would consider unexplained interim decisions that cut in favor of different policy preferences. Did injunctions against the second Trump administration always exhibit a superior deliberative process? Stays in capital cases? Orders to block deportations? Consider for example that the justices acted in an even more rapid fashion last year in A.A.R.P v. Trump.

To push that comparison a bit further, critical commentators ought to grapple with perhaps the central point that motivated the Court’s action. As the memos relate, Obama administration officials at least arguably stated that, in both this case and a prior case, the executive branch was moving too fast for the justices to stop them. Today, in the era of Trump 2.0, how many people would seriously deny that that consideration is powerful?