On Wednesday, the U.S. Supreme Court issued an "emergency" ruling in Louisiana v. American Rivers. The decision temporarily reverses a lower court's order blocking a Trump-era water regulation that makes it easier for states to issue permits to dump pollutants into navigable rivers — at least until the Ninth Circuit decides whether to take up an appeal of that order.
The order marks yet another controversial use by the Republican-appointed justices of what legal experts call the "shadow docket" — using the emergency relief process to summarily overrule lower courts or laws without any public argument or justification for doing so. Normally, the Court will hear oral arguments, deliberate, and issue an opinion on their reasoning, but ever since Republicans took a six-justice majority, the Court has increasingly skipped all of that on more substantive issues.
One unusual thing happened this time, however: Chief Justice John Roberts, a typical member of the conservative side of the bench, joined the dissent from liberal Justice Elena Kagan condemning the court's alleged abuse of the shadow docket — a potential sign he, too, is growing annoyed by his colleagues' use of emergency orders.
By 5-4 vote (with Chief Justice Roberts joining the progressives in dissent), #SCOTUS issues shadow docket stay of district court decision that had vacated a Clean Water Act certification rule. Per Kagan, J.: "That renders the Court\u2019s emergency docket not for emergencies at all."pic.twitter.com/yX6qvSrzLc— Steve Vladeck (@Steve Vladeck) 1649250960
In practical terms, this reinstates a Trump administration rule re: when and how states can provide certifications that allow for discharges of pollutants into navigable waters.— Steve Vladeck (@Steve Vladeck) 1649251274
"The applicants here have not met our standard because they have failed to substantiate their assertions of irreparable harm," said Kagan's dissent. "By nonetheless granting relief, the Court goes astray. It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required. That 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."
The "shadow docket" has taken center stage in arguments over the Court after the justices effectively used it to greenlight Texas' draconian abortion law banning almost all terminations after six weeks and deputizing private citizens to sue anyone not in compliance. Democrats on the Senate Judiciary Committee have vowed to investigate the practice.
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