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Chamber of Secrets

Washington Monthly: “…The Supreme Court’s habit of deciding hugely important cases without briefings, arguments, or even a word of explanation threatens democracy. Some progressive legal scholars have coined the term demosprudence to underline that the opinion announcements are the only time that the Court’s members directly address the public. Clearly, however, the justices do not want the public to see or hear their words. This particular Court does not conceive of itself as belonging to the people. Since Trump’s election in 2016, the Court has acquired four new justices; a new format for oral argument (formerly confined to one hour, oral argument now meanders to a conclusion when everybody runs out of steam); a new concept of precedent (previous cases are binding unless there’s something about them the new conservative majority just doesn’t like); and a new methodology for its constitutional jurisprudence (the “history and tradition”—or, more cynically, the “Look, I found something in Bracton’s De legibus et consuetudinibus Angliæ that agrees with me, case closed!”—test). Also consequential is an unannounced procedural change: The Court makes more and more important decisions through its so-called shadow docket, in which it grants or denies orders to decide, delay, or reverse lower-court decisions. These orders are often only one sentence long and announced in written form either on regular Court days or after hours. They often include no explanation of the Court’s reasoning and do not always record individual votes. Always available to the Court for genuine emergency cases (such as last-minute appeals from death row inmates), the shadow docket has become a major way in which the new Court shapes the law and steers the lower federal courts—almost uniformly in an extreme-right direction…”

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