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…Not Least for There Being No Oversight

Judicial scholars are skeptical of several of the Supreme Court's practices. The court goes its own way, subject to no check and balance, and certain of its actions raise ethical questions. Unlike all other courts, the high court is uniquely free of oversight and does not even have a self-governing code of ethics much less a code imposed from without, as by Congress.

At the level below, federal courts must handle all cases appealed to them. Not so the Supreme Court, which alone chooses the cases it will hear. That was not always true. For the first 100-or-so years, the court had to review every case appealed to it. That would be hugely impractical in a United States orders of magnitude larger. But in some of the cases it does hear, the court is accused of going beyond their parameters, most consequentially in Citizens United v. Federal Election Commission in which the justices called for the re-argument of a case — whether a corporate-funded political movie could be aired close to the 2008 primary elections — in order to expand its decision to apply to corporate and union spending on all elections.

A significant criticism of the certiorari process by which the court picks its cases is that the justices drop hints of cases they would like to hear. Chief Justice Roberts angered conservatives for voting to strike down a Louisiana abortion regulation; consistency demanded deciding the same as the court had done four years earlier in a nearly identical Texas case. But in saying that he thought the Texas case was "wrongly decided", Roberts virtually invited a different abortion petition.

Justice Samuel Alito has made something of a habit of signaling issues he'd like to review. An opponent of union dues, he went beyond a dispute involving only notice of a union's special fee to voice his opinion that opting out of union dues was a first amendment right, whereupon three cases appeared that led to the court's 5-4 decision that dealt a blow to unions' ability to collect dues.

This year, after the court declined to hear — with no opinion as it does thousands of cases each year — a challenge to a precedent set 44 years ago, Alito allied with Justice Neil Gorsuch in writing dissents. The original case denied an employee's request not to work on the Sabbath. Alito's dissent said of the 1977 case that "the only mistake here is of the court's own making" and "it is past time for the court to correct it". The dissents were a tactic to publicly invite a case that would attract the votes of four justices needed for acceptance. Alito is a determined advocate of religious prerogative. Last November he told a conservative legal group that liberals pose a growing threat to religious liberty and free speech. How are his semaphores that say "bring me a case" not judicial activism?

In a New York Times opinion article, Yale Law student Melody Wang argued that to be rid of this practice, the court should not pick its cases, and suggested that randomly selected panels of appellate judges take this role, "taking the Supreme Couirt out of the driver's seat".

in the shadows

The Texas abortion law and the court's late night decision to let it stand shined a bright light on the "shadow docket", awakening the public to a practice of which it was unaware. When asked to deal with an emergency, the court can need to issue a decision with immediacy, with no time for writing opinions. We therefore are not apprised of their reasoning, whereas in the normal order of business formal explication of its reasoning is fundamental to judging.

The problem is that the court has come to run cases through its shadow docket with increased frequency. The Trump administration filed 36 emergency application with the court. In contrast the administrations of George W. Bush and Barack Obama issued just eight over their 16 years. The Wall Street Journal explains away Trump's heavy use of emergency applications as asking the high court to lift lower court injunctions that blocked his policies. Issuing its decrees without explaining why — sometime later if the moment doesn't permit — leaves the government, business, the public to view such decisions as arbitrary and abusive by the justices of their power. As Adam Serwer of The Atlantic wrote, "Five conservative justices invalidated the constitutional right to an abortion simply because they could".

This is the court not tending to its legitimacy. In reaction they've become defensive. Justice Alito in a speech at Notre Dame said criticism of the court's shadow docket actions is an attempt to intimidate the court. Justice Barrett, who insists she and her high court colleagues aren’t “a bunch of partisan hacks”, did so speaking at an institute that bears Mitch McConnell's name, he who had rushed her confirmation through the Senate. Justice Thomas cautioned against "destroying our institutions because they don't give us what we want when we want it."

A test of that comes December 1 when the court will hear a challenge to Mississippi's law that bans abortions after fifteen weeks of pregnancy. Averaging recent polls, two-thirds of Americans want abortion to remain legal, but it is widely expected the the court will go against the people, possibly even overturning the precedent of constitutionally approved Roe v. Wade. If so, it is unavoidable that the legitimacy issue will arise, with a sizeable percentage of of Americans thinking the justices are just voting their religion again, five of the conservative justices being Catholic and the sixth a Protestant, but educated in Catholic schools.

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