Harvard magazine reports on recent comments by retired Supreme Court Justice Stephen Breyer on the "shadow docket." Although Justice Breyer would likely vote with the more liberal justices on many interim orders, he does not seem to share the concerns of Court commentators about how the Court has been handling things. From the story:
"Should we be worried about the Court's reliance on the shadow docket?" West asked Breyer, noting that many audience members had submitted questions about it.
No, was Breyer's short answer. "Every court has what you're saying is a shadow docket, which we call an emergency docket," he said, explaining that throughout most of the Supreme Court's history the docket had been used primarily to issue stays of execution in death penalty cases. "Or sometimes," he added, there would be a "very important case about an election or an election rule, and we might issue the stay."
Tracing the increasing use of the shadow docket in part to the rash of legal challenges that sprang up in the wake of vaccine mandates and other restrictions during the COVID-19 pandemic, Breyer—who now serves as Byrne professor of administrative law at Harvard Law School and as a visiting judge for the First Circuit Court of Appeals—rejected the notion that "there's some kind of plot involved within the Court to get this or that decided."
Instead, he argued, the nature of cases reaching the court on an emergency basis has changed: rather than death penalty and election matters, many cases more often involve constitutional disputes about "the nature of the constitutional relationship" between Congress and the president and the separation of powers."
"So it's hardly surprising to me, where you have a government that wants to bring those [issues] up, that you have more cases on the emergency docket," Breyer said.
Former Judge Michael McConnell does not share Justice Breyer's judicial philosophy, but has a similar take on whether the increasing use of the "shadow docket" should raise alarms. Writing in the Washington Post, he notes that this is an understandable and inevitable response to the increasing reliance upon aggressive assertions of executive power and resulting litigation. He writes:
