If you have 22 minutes and you’re curious, John Oliver on “Last Week Tonight” explains the shadow docket. Steve Vladeck, the man who wrote the book (The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic) recommends Oliver’s explanation.
Plus: gerrymandering race to the bottom and the chief justice’s complaints that the court is misunderstood
On a related note, Professor Vladeck, a savvy court watcher, weighed in today (at One First) on the redistricting chaos the Supreme Court chose to unleash and the unconvincing insistence of the chief justice that the court is not political.
I really didn’t want to write about redistricting again, but events in the latter part of last week seemed to demand it. It’s not just the brazen racism we’ve seen in some of the state legislatures that are rushing to eliminate majority-minority districts (e.g., “y’all need to shut up, boy”), or the not-exactly-obvious reading of Virginia law that the Virginia Supreme Court adopted to nix Virginia voters’ attempt to belatedly redraw the Commonwealth’s congressional districts, but also Alabama’s … aggressive … requests for emergency relief to the U.S. Supreme Court to let it get out from under earlier district court rulings—including ones the Supreme Court affirmed on the merits—so it can re-draw its maps in time for this cycle.
All of this came the same week that Chief Justice Roberts, in remarks at the Third Circuit Judicial Conference, complained about the public perception that the Court is “political.” In his words, “I think [people] view us as purely political actors, which I don’t think is an accurate understanding of what we do.” Shortly after that, he added that the Court is “simply not part of the political process.”
Roberts may tell himself that the Court is not part of the political process, but the (growing) evidence is overwhelmingly to the contrary. Indeed, the Court inserted itself into the midterm cycle—and set off this race to the bottom—knowingly (if not deliberately), both in what it ruled in Callais and in its willingness to issue the judgment immediately. That latter development was an unmissable signal that it was not averse to having this exact kind of chaos unfold on the ground—a point Justice Jackson made explicitly in her dissent from last Monday’s order. In her words, “as always, the Court has a choice.” By issuing the Callais judgment immediately, the majority “unshackles itself from [doctrinal] constraints . . . and dives into the fray.”
This, to me, is the key point: whatever one thinks of the ruling in Callais, the Court chose this chaos. And now that it is on the receiving end of applications from Alabama (and with an application from Virginia apparently on the way), to suggest the Court is not “part of the political process” is to deny the entirely obvious (and entirely predictable) consequences of the Court’s own behavior—not just in Callais, but before April 29 and since. Worse than that, all of these developments rather fatally undermine what I’d always understood to be the animating purpose of the so-called “Purcell principle”—which makes sense only as a strong norm against federal judicial intervention in the middle of election cycles. The Court’s own interventions are now wreaking havoc—and a majority of the justices either don’t think it’s their fault, or don’t care that it is. Either way, they don’t seem to mind the inconsistency—in a context in which it’s having the remarkably coincidental effect of benefiting Republicans.
Vladeck elaborates on these points and explains the Tim Robinson meme — image above — that inspired the title of his post at One First.