Breyer leery of Supreme Court’s ‘shadow docket’

Justice Stephen Breyer is expressing misgivings about the Supreme Court’s increasingly common practice of deciding weighty cases on an emergency basis.

The court’s so-called shadow docket, which often produces consequential rulings without first receiving a comprehensive set of paper briefs or hearing oral arguments, was among the topics the 83-year-old liberal justice discussed in an interview published Friday in The New York Times.

“I can’t say never decide a shadow-docket thing,” he told the newspaper’s Supreme Court correspondent Adam Liptak. “Not never. But be careful. And I’ve said that in print. I’ll probably say it more.”

Although the shadow docket itself is not new, the Supreme Court had previously used the truncated process only sparingly to render decisions of major consequence, according to a report by The Economist, which found the practice became more common during the Trump administration.

Breyer’s comments appeared after the court this week ruled on two significant cases, via the shadow docket, that could affect the lives of tens of thousands of asylum-seekers and millions of tenants in the U.S.

The New York Times article appeared just hours after a shadow docket ruling on Thursday night blocked an eviction freeze put in place by the Centers for Disease Control and Prevention (CDC) to shield cash-strapped renters from the coronavirus pandemic.

The unsigned order appeared to break along familiar ideological lines, with the conservative-majority court effectively stripping federal protections from millions of tenants as the U.S. contends with the highly contagious delta variant of COVID-19.

Breyer, in a dissent that was joined by the court’s two other liberals, criticized the majority for reaching its decision despite unanswered questions concerning the legal dispute at hand.

“These questions call for considered decisionmaking, informed by full briefing and argument,” Breyer wrote in an eight-page dissent. “Their answers impact the health of millions. We should not set aside the CDC’s eviction moratorium in this summary proceeding. The criteria for granting the emergency application are not met.”

Earlier this week, the Supreme Court, again operating under its shadow docket, denied a Biden administration request to intervene in a lower court ruling that ordered the reinstatement of a controversial Trump-era immigration policy.

The court’s three liberals indicated they would have stepped in to halt the reinstatement of the policy, which requires asylum-seekers at the southern border to remain in Mexico while their applications are processed.