Supreme Court Shadow Docket Is Showing — Once Again — Its Contempt For Consistency When It Stands In The Way Of Their Political Goals

(Photo by Collection of the Supreme Court of the United States via Getty Images)

The emperor has no clothes — or to be more precise the Supreme Court has no consistency. The latest kick to the gut of the Court’s legitimacy came yesterday via the shadow docket — because of course. In Arizona et al. v. Alejandro Mayorkas et al., the Court held in a 5-4 decision that Title 42, a Trump era public health policy that allowed migrants to be expelled quickly from the country during the COVID-19 crisis, could not be lifted during the appeal of a lower court’s decision to end the policy.

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The thing that really chaps my hide about the decision is the wild inconsistency on COVID policy. Four of the justices in the majority — Neil Gorsuch joined the left of the Court in dissent — previously held (at the height of the pandemic’s death toll, no less) that health policies could not restrict religious services. But now that COVID-19 is largely at bay, Justices Thomas, Alito, Kavanaugh and Barrett now think COVID is a fine reason to restrict immigration? The math’s not mathing. That is until you see the through line is current conservative political goals, not any sort of jurisprudential theory.

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In dissent, Gorsuch laid out some harsh truth bombs for the majority, as reported by Law360:

Justice Gorsuch, joined by Justice Jackson, said in a dissent that the majority’s decision to grant expedited review of the matter and forcing the federal government to continue enforcing Title 42 indefinitely is “unwise.” The emergency of the coronavirus pandemic that gave rise to the use of Title 42 “has long since lapsed,” they said.

“And it is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergency decrees that have outlived their shelf life,” Justice Gorsuch wrote.

The dissenting justices did not discount the states’ contention that they will face an immigration crisis if Title 42 is lifted. However, that crisis is not related to COVID-19, they held.

“And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency,” the dissent said. “We are a court of law, not policymakers of last resort.”

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Yeah, unelected policymakers with lifetime appointments is not what the founders thought they were doing. Or does that not matter anymore?

The Court has become what conservatives long-claimed to hate policymakers in robes. And even the majority’s nod toward separation of powers doesn’t hold much water.

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So it’s both (1) kind of weird for #SCOTUS to engage in this kind of word play; and (2) misleading a lot of folks into thinking the Biden Administration can still just get rid of Title 42. *This* order doesn’t stop them from doing that, but there’s another one that clearly does.

— Steve Vladeck (@steve_vladeck) December 28, 2022

But the YOLO Court’s anything-as-long-as-we-get-the-W vibe is becoming increasingly clear.  The Court’s public approval rate is in the toilet and justices themselves are questioning the legitimacy of the institution, a majority of the justices seem happy to barter away all the good will the Court historically enjoys and issue whatever rulings happen to advance their political goals.

So much for the idea that Roberts cares about the legitimacy of the Court. He votes that the executive can’t change an executive order about a COVID lockdown just because we don’t need COVID lockdowns anymore. https://t.co/KNic51qe94

— Joe Patrice (@JosephPatrice) December 27, 2022

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In the midst of Term two of a Court dominated by the far right it’s pretty obvious we should only expect the worst.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].

Topics

Courts, COVID, Immigration, Neil Gorsuch, Supreme Court, Title 42