Jonathan P. Baird

June is the month when the U.S. Supreme Court drops many of its big opinions from its merits docket. Of less notice but very consequential are decisions rendered on the Court’s shadow docket. The shadow or emergency docket includes those decisions when there is no legal reasoning. They are unsigned, unexplained decrees.

During the Trump era, both in its first term and now, the shadow docket has ramped up and become much more prominent. Trump’s solicitor generals have sought emergency relief far more often than previous administrations. They know which way the wind is blowing.

In fact, 99% of the Court’s decisions take place on the shadow docket.

The most recent notable example was the May decision in Wilcox v NLRB. In that case, the Court declined to reinstate Gwynne Wilcox of the National Labor Relations Board and Kathy Harris of the Merit System Protection Board after they were fired by Trump. They are out of jobs while the litigation continues and realistically their jobs are history. The Court majority would not have allowed the firings if it was not a certainty how they would ultimately rule.

Under federal law, both Wilcox and Harris were protected from removal by the President. Congress had passed a statute that required good cause for removal. With neither Wilcox nor Harris was there any allegation of a good cause reason for removal. Congress had designed independent federal agencies to be both bi-partisan and balanced. Here the Court essentially trashed Congress’s clear roadmap.

Additionally, there has been a 90 year old precedent, the case of Humphrey’s Executor v U.S., which has upheld protections against removal for members of independent federal agencies like the NLRB and the MSPB. Yet, the Court, without explanation, overruled existing law. The Court said nothing about Humphrey’s Executor although it has been widely anticipated that the Court would eventually overrule that precedent.

By removing Wilcox from the NLRB, there are only two members left on the board which is insufficient for a quorum. Without a quorum, the NLRB cannot hear cases or make decisions. The NLRB exists to hear cases about the violation of worker’s rights. In effect, the Court is stymying and delaying accountability for unfair labor practices. Justice delayed is justice denied and the Supreme Court’s action furthers the interests of Big Business and the Trump administration who both oppose labor.

I would mention that Gwynne Wilcox was the first Black woman to serve on the NLRB and the first Black chair of that board. During her tenure, the NLRB supported workers’ collective bargaining rights and adopted a more pro-worker stance.

Wilcox aside, there are many reasons for the diminished reputation of the Supreme Court. Always siding with the billionaire class and the powerful against workers, failing to investigate and clean up its very public corruption, and giving a convicted felon almost absolute criminal immunity are three reasons.

The shadow docket doesn’t help what is already an embarrassing picture. The Court’s majority makes political decisions that help their Republican allies and they do it with no explanation while disregarding precedent. Shadow dockets were not supposed to be used to change the law.

Professor Stephen Vladeck, author of The Shadow Docket, has written that the Supreme Court’s legitimacy depends on its ability to explain itself. He says the rise of the shadow docket is anathema to that understanding. There is a connection between the increased use of the shadow docket and the decline in public confidence in the Supreme Court.

Wilcox is not the first shadow docket decision of significance. A little less than a year before the Supreme Court’s decision in Dobbs overturning abortion rights, the Court majority refused to block Texas’ ban of abortion after the sixth week of pregnancy. The Texas court ruling flagrantly violated Roe v Wade which was still the law of the land. That was wildly improper but as with Wilcox, it was a tip off on the position of the Court’s conservative majority.

At a time when the nation faces an unprecedented authoritarian threat from an out-of-control President, the Court gives that president expanded powers. It was not enough for the Court majority to shamefully and wrongfully protect Trump from crimes he has committed. They feed the would-be dictator’s power grab at the expense of Congress. Right wing authoritarianism is moving on many fronts to strengthen their grip on power and control. The shadow docket isn’t doing law. It is doing politics for the Trump team.

The reckless use of the shadow docket as in Wilcox will only breed more contempt for the Court. In the case of Planned Parenthood v Casey, Justices Souter, Kennedy, and O’Connor wrote:

“..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.”

The current Supreme Court majority has lost its way. They are about using their super-majority to achieve MAGA goals as quickly as possible.