WASHINGTON (CN) — When the Supreme Court shot down a challenge to vaccine mandates this time last week, Justice Amy Coney Barrett included a rebuke to the perpetual use of the shadow docket and provided an explanation as to the court's apparent about-face in a challenge to a controversial abortion ban it had let take effect just two months prior.
Joined by Justice Brett Kavanaugh, Barrett began the single-paragraph concurring opinion against unvaccinated health care workers by first laying out what makes a case worthy of a high court injunction — namely, the consideration of whether the case is likely to succeed on the merits and if the case otherwise warrants review. If the court employed a different standard, Barrett continued, it would inadvertently offer a merits preview in cases they would not likely take.
In this warning, Barrett makes an important point about how the court has used the emergency docket in the past and the problems it has caused for the court.
“Justice Barrett is saying the Supreme Court doesn't decide every disputed issue of American life or even every disputed legal issue in the country, that's why they have cert jurisdiction as opposed to mandatory appellate jurisdiction,” Richard Bernstein, an appellate lawyer, said in a phone call.
The Supreme Court has faced increasing criticism over its use of the emergency docket — coined by some as the shadow docket — because of its lack of transparency. As the justices increasingly get involved in cases dealing with narrow issues at the stay stage — where proceedings can be put on hold, and where a writ of certiorari would not normally occur — the number of cases on the emergency docket seems to grow.
“It seems like over time there's been an increasingly aggressive use of that power by the court, and litigants, unsurprisingly, have been seeking that kind of relief,” said Brian Burgess, a partner at Goodwin Proctor. “But the way I read this order is a reluctance for justices that may well be sympathetic to the underlying claim by the challengers there but are hesitant to be issuing merits decisions on every application for emergency relief.”
Barrett seems to point to the fact that the relief should not be granted to the health care workers because their case wouldn’t have been granted certiorari if it came before the court like any other case.
“It should be exactly the same at the stay sage as it is when a full cert petition comes up,” Bernstein said. “They shouldn't take on everything just because it's a highly politicized case or a case that gets a lot of attention in the media.”
The shadow docket’s criticism came to a peak after the court refused in a 5-4 midnight ruling to stop the country’s most restrictive abortion ban from going into effect. Nearly two months later, the court agreed to hear the case on an extremely expedited schedule. Barrett’s subsequent opinion in the vaccine mandate case could be an explanation for what happened with the abortion case.
“I think that she was burned … when they let the law go into effect … the reaction was how could you do something at this moment, in an emergency decision, and I think that that's what she's being responsive to,” said Nancy Gertner, a retired federal judge and senior lecturer on law at Harvard.
The court’s initial stay denial in the Texas abortion ban case proved how hard it is for justices to make quick decisions on big cases.
“They're realizing that the Supreme Court's very quick decision in the stay case at the stay stage did not turn out to be correct when they were able — because they granted cert — to have more briefing, more time to look at the case, and that just means they're human beings,” Bernstein said.
Barrett’s opinion in this case also gives her and Kavanaugh an opportunity to show their willingness to decide procedural issues without being clouded by their policy views. Bernstein said this decision along with the choice to not join two dissents in a Pennsylvania case concerning the 2020 election.
“I view these as three occasions where Justices Barrett and Kavanaugh were in highly politicized cases, where they appear to be calling the procedural issues, that have nothing to do with the politics of the case, straight and that's good for the court and good for the country,” Bernstein said.
The Supreme Court heard arguments in the Texas abortion case on Nov. 1. No timeline for a ruling has been given.
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