SUPREME COURT’S REPEATED ABUSE OF SHADOW DOCKET PROVES NEED FOR EXPANSION

SAN FRANCISCO, CA (April 6, 2022) — Today, the Supreme Court used the shadow docket to take another swipe at our nation’s environmental protection infrastructure, this time reinstating a Trump administration attack on the Clean Water Act. The move is just one of many wrongful uses of the shadow docket by the Court’s conservative majority to advance its extreme right-wing agenda without providing any reasoning to the public.

In her dissent, Justice Elena Kagan lamented that the Court’s use of the shadow docket in the case “renders the Court’s emergency docket not for emergencies at all. The docket becomes only another place for merits determinations—except made without full briefing and argument.”

“Perhaps even more frightening than the stolen Supreme Court’s latest attack on our nation’s bedrock environmental protection legislation today is the right-wing majority’s reliance on the shadow docket to do so,” said Sarah Lipton-Lubet, executive director of Take Back the Court. “Once again, the Court’s conservative majority is abusing the shadow docket to issue a harmful ruling with no accountability, zero transparency, and without even a line of reasoning to the American public in the form of an opinion.”

University of Texas law professor Steve Vladeck has explained that in its increasing use of the shadow docket — expedited rulings issued without full argument or written opinions — “[t]he court routinely flouts its own procedural standards to change substantive law in unexplained and inconsistent rulings.” Earlier this year, the Court’s right-wing majority used the shadow docket to reinstate proposed discriminatory, anti-Black Alabama congressional district maps, which two separate lower courts found violated the Voting Rights Act. And just two weeks ago, it issued another shocking shadow docket decision, siding with Republicans to summarily throw out the Wisconsin Supreme Court’s ruling that adopted the Democratic governor’s state redistricting maps — which created an additional Black-majority seat in the state assembly.

“The Court cannot be allowed to continue breaking down the country’s landmark laws and putting Americans’ health at risk under the cover of darkness. We have to neutralize this anti-democratic majority by expanding the Court,” Lipton-Lubet added.

Take Back the Court raises awareness about the urgent need to expand the number of seats on the Supreme Court to address the theft of the court by Senator Mitch McConnell during the Obama Administration. Without adding seats, Congress will not be able to restore the right to vote, ensure reproductive freedom, protect workers, halt our climate emergency, or pass new legislation. Court expansion, which can be accomplished without a constitutional amendment, is the only reform that enables the un-rigging of the system and the restoration of democracy. Learn more: https://www.takebackthecourt.today/