Posts Tagged ‘Thurgood Marshall’
“A public trial is the best security for the pure, impartial, and efficient administration of justice, the best means of winning for it public confidence and respect”*
We have all, understandably, been paying a great deal of attention to what the U. S. Supreme Court has been deciding. But as Joe Patrice reminds us, it’s important to attend to how they are making their decisions as well…
Conservative justices have spent years at war with two words. I know you’re thinking it’s something like “equal protection” or “reproductive rights,” or “basic ethics,” but let’s be serious — they already won those wars. The two words that get the conservatives riled up these days are “shadow docket.” Samuel Alito blasted the media for using the term to create the impression that the Supreme Court “is deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view,” just because the Supreme Court is, in fact, deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view. Brett Kavanaugh even channeled his inner Gretchen Wieners seeking a “fetch”-esque rebrand, hoping the term “interim docket” might catch on to make the flurry of consequential constitutional decisions rammed through without briefing or written opinion seem less… shady.
Well, maybe they’re right! Maybe it is time to drop the shadow docket. Not because the Court’s aggressive abuse of the procedure is any more legitimate, but because the metaphor broke. A shadow needs something real to stand in the light, while the shadow is the smaller, murkier thing trailing behind.
But now, the shadow docket is the Supreme Court’s preferred way of doing business. The outlier is when the justices deign to respect transparency.
ProPublica set out to put numbers behind the shadow docket. Analyzing the Court’s records, and excluding simple administrative requests and capital cases that have long lived on the emergency docket, ProPublica found back in July that the shadow has overtaken the merits docket:
I discovered that in the term that ended in 2025, the justices issued more substantive decisions on their emergency docket than in cases argued in open court. Experts told me this was likely the first time this has happened in the court’s modern history.
The Supreme Court issued 63 shadow orders in the term ending last year, to only 56 with argument and real, written and signed majority opinions. This year isn’t looking much better.
When the kitchen door handles more traffic than the front door, it’s just the front door now. The briefing-argument-signed-opinion routine everyone learned in school — and which underpins the judiciary’s entire claim to legitimacy — is now the side project. We shall henceforth dub the merits docket as the “transparent docket,” a quaint exhibition the justices run from October through June in between unbriefed and unexplained rulings to rewrite constitutional order.
ProPublica’s Ken B. Morales put the numbers to the Supreme Court itself:
Representatives from the Supreme Court did not respond to my questions.
You have got to hand it to the justices for their commitment to the bit.
ProPublica notes that “Every decision the court has made since July has been on its shadow docket.” Which is always true during the Court’s summer break — but historically the summer break was a “break” and not business-as-usual. These days, the Court doesn’t take summers off from deciding things, just from explaining them.
Oh, remember back in the day when Amy Coney Barrett whined about the public needing to “read the opinion.” That was before she decided well, you can’t expect us to put ourselves on the record when we blow up constitutional order!
The surge in these under-the-table orders have mostly inured to the benefit of the Trump administration. Like the Court greenlighting the president’s power to blow up and then squander millions in taxpayer funds to build vanity projects — a power we hope to see applied to One First Street soon. But Trump has suffered his share of losses through the process too, notably this month’s block on Missouri’s new gerrymander and the order upholding the injunction on Trump using the Postal Service to steal mail-in ballots.
But as much as it warms the heart of anyone who cares about constitutional order to see the Trump administration lose, this is about more than the outcome. We should have arguments and signed opinions. The Court’s power derives from its power of persuasion, as Judge J. Michael Luttig has said. An emergency stay is all well and good if issued to give the justices time to set up a proper, transparent process.
But too often these days, as Professor Vladeck notes, the supposedly “interim” order slides into de facto permanence without the Court bothering to follow up…
Eminently worth reading in full: “Supreme Court ‘Shadow’ Docket Is Now Bigger Than The Real, ‘Transparent’ One,” from @joepatrice.bsky.social in @abovethelaw.com.
Update: After publication, I received this response from an old friend…
As a retired lawyer with time on my hands, I follow the Supreme Court fairly closely. To add some context to Joe Patrice’s article, lower federal courts have issued roughly 300 preliminary injunctions/temporary restraining orders against the Trump administration. The Supreme Court has considered 32 emergency appeals (the “shadow docket”) of those orders. It has stayed 24 of the PIs/TROs. The Court has explained most of those stays, particularly over the last year, and for the rest the reasons for the Court’s action are fairly obvious.
I have been reading Supreme Court opinions for 54 years now. The old opinions were more concise, elegant, and sweeping. They often ignored counterarguments and stayed out of the weeds. The current opinions & dissents are more thorough, rigorous, and legally sophisticated. They read more like law review articles. They address the other side’s arguments. They are more tedious to read, but do a better job of explaining decisions. The Court is more transparent today than it has ever been.
Your correspondent is not (like Joe Patrice and my old friend) a lawyer, retired or otherwise. I find that, while I take my friend’s points, I still prefer a return of the balance to the more open, on the merits docket… even as I appreciate that the Administration’s “flood the zone” approach is making this difficult… In nay case, even if we look past how the Court is operating, we’re left with what they are deciding…
* Robert Reid, 1st Earl Loreburn
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As we agree with Louis Brandeis that “sunlight is the best of disinfectants,” we might recall that it was on this date in 1967 that Thurgood Marshall was sworn in as the first African-American justice of the United States Supreme Court. Appointed by President Lyndon Johnson, Marshall had been a storied civil rights attorney and jurist (Federal Court of Appeals); he served on the highest bench from 1967 until his retirement in 1991.
Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.
— Thurgood Marshall
“Our new Constitution is now established, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes.”*…
Franklin’s caution was, of course, premonitory. David W. Blight explains why in his review of James Oakes‘ new book, The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution…
Historians can and do change their minds about interpretations of events and the uses of evidence. We may be dead certain, or even mildly sure, about facts and the stories we tell about them, but our craft requires us to remain open to new persuasions, new truths. James Oakes used to believe that the United States Constitution was essentially proslavery in its foundations, and that any attempt to breathe antislavery meaning into it was strained or rhetorical and not textually supported. But no more. In his remarkable and challenging book The Crooked Path to Abolition, he makes the case that there were effectively two constitutions written in Philadelphia that summer of 1787, one proslavery and one antislavery, which would be in conflict with each other for more than the next fourscore years.
Oakes, a distinguished professor of history at the CUNY Graduate Center, is not the only historian to have changed his view on this matter. In my first book, in 1989, I treated Frederick Douglass’s development of an antislavery interpretation of the Constitution as a slowly evolving perspective on his road to becoming a pragmatic political abolitionist and as a form of wish fulfillment in the absence of alternatives. I called his antislavery constitutionalism “dubious”—a search for political and moral ground on which he could stand to avoid embracing violent revolution by the 1850s. But I have come to see him as a deeply committed political thinker who argued his way, through what he called “careful study,” using legal and moral logic, to a vision of an antislavery Constitution. Guided by the natural rights tradition, Douglass found the core meaning of the American crisis. “Liberty and Slavery—opposite as Heaven and Hell,” he wrote in 1850, “are both in the Constitution.” What divided the nation was a Constitution “at war with itself.”
It has long been understood that without the compromises that were struck to bolster the interests of the slave states, there might have been no constitution achieved in 1787, and the thirteen original states might have careened off into regional coalitions at best…
he original Constitution reeked of complicity with the peculiar institution. It contained prominent proslavery features: a fugitive slave clause requiring retrieval of escaped bondspeople (although ambiguous about adjudication), the provision that the end of the foreign slave trade would be postponed until at least 1808 (both sides claimed victory in this matter), and the numerous elements that embedded federalism deeply into the document, enabling the doctrine of states’ rights to flourish. Above all, the three-fifths clause counting enslaved people in such a robust fraction for the purpose of representation in Congress and the Electoral College, which enhanced significantly the slave states’ power in the legislative branch and presidential elections, explicitly gave the United States, it seemed, a permanent proslavery future.
Proslavery advocates made the Fifth Amendment’s guaranteed protection of property ownership their “linchpin,” Oakes shows, in one crisis after another in the antebellum era, including the dangerous controversy around the admission of Missouri as a state in 1820. The Fugitive Slave Act of 1850 drew its power, at least slaveholding southerners believed, from original, if vague, constitutional guarantees of the return of escapees. But so did the passionate resistance to that hated provision in the North because of the Constitution’s equally explicit guarantee in the Fifth Amendment of due process to “all persons.”
Southerners would, of course, claim that the Constitution permitted their secession in 1861, following the argument of John C. Calhoun of South Carolina, who maintained that the United States had been from its inception a contractual arrangement balanced between slave- and free-state interests. And they confidently held that, according to the Tenth Amendment, all powers not delegated to the federal government were reserved to the states. The proslavery Constitution had previously sustained slaveholders’ faith in their power within the Union, and in “King Cotton” as economic leverage, down to the late 1850s, despite their increasing minority status.
On the other hand, Oakes identifies several parts of the Constitution as inherently antislavery. The preamble’s call for a “more perfect union” inspired abolitionists, who also pointed to section 4 of article 4 and its “guarantee to every state in this Union a republican form of government.” Section 2 of article 4 buttressed a growing antebellum claim of Black citizenship, rooted in the privileges and immunities clause. Antislavery constitutionalists also found support for their principles in the Fourth Amendment: the rights of Americans to be “secure in their persons…against unreasonable searches and seizures” offered language to protect fugitive slaves and promote human rights.
The Fifth Amendment served both sides, but abolitionists drew increasingly on its stricture that no “person” shall be “deprived of life, liberty…without due process of law.” They avoided the word “property,” which followed “liberty” in the text, not just out of convenience but because of their long-standing legal and moral rejection of the idea of “property in man.”…
The combination of all these clauses and principles allowed some abolitionists to declare the Constitution a bulwark for human equality and not merely, as Oakes says, a “hypocritical fantasy” crushed by white supremacy and a larger history. Some modern readers who are now conditioned to see the United States only as a progenitor of racial inequality may, misguidedly, find this claim on behalf of abolitionists a bridge too far...
[There follows an illuminating recounting of the arguments between the two sides over the nexts several decades, then of Lincoln’s reading and the Civil War…]
We still have two Constitutions on many issues: the nature of federalism, voting rights, election laws, the right to bear arms, and much more. We have a majority on the Supreme Court determined to return every power possible to the states, reverting the “Union” to many decades ago when it was a collection of battling legal sovereigns with common borders. The historical template for these and other future debates may always be the profound failures and triumphs of antislavery constitutionalism’s struggle against proslavery constitutionalism in the 1850s and 1860s. The heat in our public history wars today needs the light of this kind of scholarship, however difficult it is to sustain faith in truth, persuasion, and historical consciousness itself…
Too timely: “The Two Constitutions,” @davidwblight1 in @nybooks.
An apposite piece on the several ways that American’s “read” the founder of modern economics: “America’s Adam Smith” from Branko Milanovic (@BrankoMilan).
* Benjamin Franklin, in a November, 1789 letter to French scientist Jean-Baptiste Le Roy
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As we choose a side, we might recall that it was on this date in 1967 that President Lyndon B. Johnson nominated Solicitor-General Thurgood Marshall to become the first black justice on the U.S. Supreme Court. A storied civil rights attorney and jurist (Federal Court of Appeals), Marshall served on the highest bench from 1967 until his retirement in 1991.
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