On Wednesday, writing for The Washington Post, University of Texas law professor Steve Vladeck outlined how Chief Justice John Roberts' decision to join a dissent criticizing the so-called "shadow docket" being used by his fellow right-wing justices to adjudicate complicated issues with no debate or explanation, is a sign of how he has "lost control" of the conservative Supreme Court he helped to create.
The dissent in question was part of a case, Louisiana v. American Rivers, where the rest of the right-wing justices chose to temporarily restore a Trump-era rule making it easier for states to grant exemptions from the Clean Water Act, letting companies build projects that could pollute rivers and streams — at least until an appellate court can hear the matter. The move was criticized because the Court granted emergency relief for a mundane regulatory issue, appearing to put their thumb on the scale without any justification.
"The temporary decision cannot be ignored, especially because of the brief but blistering dissenting opinion written by Justice Elena Kagan," wrote Vladeck. "But it was significant for being the first time that Chief Justice John Roberts joined her (and Justices Stephen Breyer and Sonia Sotomayor) in doing so. With the striking public stance, the chief justice illustrated how concerns about the procedural shortcuts the other conservative justices are taking do (and should) cross ideological divides. He also made clear what many have long suspected: The Roberts court is over."
This sort of corner-cutting Roberts criticizes is becoming increasingly common in service to the Court's ideological aims, noted Vladeck.
"Far more than ever before, the court is using procedural orders on applications for emergency relief while appeals work their way through the courts to resolve disputes affecting the lives of millions of Americans — whether in blocking a rule from the Occupational Safety and Health Administration on a vaccination mandate for large employers, refusing to block Texas’ ban on most abortions after six weeks or putting back into effect congressional district maps that two Alabama lower courts struck down as violating the Voting Rights Act," wrote Vladeck. "Time and again, the justices are ordering lower courts to treat these decisions as precedents — even when, as in last week’s ruling, the order includes no analysis to apply to other cases, which often makes the precedent difficult for lower courts to apply."
As Vladeck concluded, Roberts is known for being one of the most passionate defenders of the Court's credibility as an institution — and that is the source of the new tensions.
"The justices have long insisted — as Justices Sandra Day O’Connor, Anthony Kennedy and David Souter put it in 1992 — that 'the court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the nation,'" wrote Vladeck. "The proliferation of principle-free decisions affecting more and more Americans — and with a clear, troubling tendency of favoring Republicans over Democrats — calls that legitimacy into increasingly serious question. It’s understandable, then, why Chief Justice Roberts would finally speak out. No one better understands the stakes for the court’s credibility — and institutional viability."
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