OP-ED: The Dangers of the “Shadow Docket”

OP-ED: The Dangers of the “Shadow Docket”

 

The conservative court is using the shadow docket to hide their partisan decisions.

OP-ED:

The Dangers of the “Shadow Docket”

There is a fundamental danger to our democracy when the Supreme Court is allowed to hide their actions through the misuse of the “Shadow Docket.” 

 

The “shadow docket” references cases taken up on an ’emergency basis’, outside the scope of the Supreme Court’s normal procedural order. . . .

By D. S. Mitchell

Partisan And Controversial Decisions

Observers have noted that the current court has disproportionately used the shadow docket to authorize its most right-wing and controversial decisions. Nearly all of the SCOTUS’s Covid-19 decisions have seeped and bubbled up from the shadow docket. Specifically, both of its rulings on the CDC eviction moratorium came through this dark and enigmatic process.

An Unsigned Opinion  

In August of 2021, SCOTUS handed Biden a shocking ruling. The court ordered Biden to re-instate Trump’s “Remain in Mexico” program. Where did this ability suddenly manifest itself? The court has no authority over treaties with foreign governments. None. The outrageous ruling came in a single one paragraph unsigned opinion. This opinion (like other Shadow Docket opinions), gave no insight into the judicial history supporting the court’s decision to upend the constitutional separation of powers.  The court is now looking at the Texas abortion law. I’d call it a bit late. The heartbeat law went into effect on 9/1/2021. It is the first time a state has successfully imposed a six-week abortion ban since Roe v. Wade was decided.  The only reason is that the court has been packed with anti-abortionists. SCOTUS refused to take up the case, initially attempting to hide behind the shadow docket.

Vigilante’s Extraordinaire

As a refresher, SCROTUS said, (by initially refusing to hear the case) it was okay if Texas set up a system where vigilantes are allowed, and in fact, encouraged to pursue a woman in court for damages of up to $10,000; and anyone who assists her in obtaining an abortion.  Imagine this, it can be the cabbie that took the woman to the medical appointment, a friend who provided educational materials on termination, or the doctor who provides the abortion. Each of them under Texas law can be hauled into court and sued by someone with no standing in the case, in effect, on behalf of the state.

Dystonic Fiction

Atwood’s ‘The Handmaiden’s Tale’ in real life.

What We Expect

In the innocence of our collective minds, we fantasize the nine justices in their solemn black robes hearing robust debate in open court in front of fascinated and anticipatory spectators. Their esteemed heads taking in the well-considered arguments between opposing attorneys and ideologies, giving deliberate consideration to the legal issues of each individual case. Only after prolonged and august discussion does the court publish their venerable decisions in long verbose opinions. But, that is a faulty image of what is actually happening, folks. This heavily conservative court has slipped into a dangerous shadow zone, a place where justices lack the courage to sign their names to their own rulings, while expecting complete deference and compliance to those rulings. Somehow the two do not mesh in a democratic society.

Here’s How It Works

Here’s how it works in the SCROTUS of 2021. Lawyers are allowed to submit expedited briefs to make their “emergency” arguments, but they are not allowed to argue in person, in full view of the press and the public. These decisions don’t come after months of deliberation amongst the justices, but quickly and through whatever informal conversations the justices may have between themselves. Usually they don’t bother to explain to litigants the law or logic behind their decrees, instead issuing an order often amounting to a mere few sentences.

My Thoughts On The Matter

I believe, it is clearly evident that SCOTUS is operating in bad faith. This group of hacks is so lazy in their decisions that they won’t even take time to create legal reasons for their partisan hackery. Under the guise of “emergency” rulings this flawed and broken court is making policy. Courts do not make policy. That is not their role. Unsurprisingly the policy this court concocts melds nicely with the extremist Republican party’s political agenda. Using the “shadow docket” the court is attempting to camouflage it’s heinous actions.

Hitting The Talk Shows

Recently several of the sitting justices, hearing angry rumblings across the country have taken to the airwaves. Their recent appearances across media platforms make it clear that the justices have noted that the public view of the supreme court is at its lowest level in decades. When you have justices making speeches at colleges and going on TV claiming they “are not partisan hacks” you can damn well be assured they know the public is on to them.

The Real Danger

The power now wielded by unelected conservative justices is unnerving to me, and should be worrisome to anyone, no matter their place on the political spectrum. Just to point out, any Executive Order signed by this president (or any other president), any law passed by Congress, can be undone in the dark of night, without reason or explanation. Since this administration lacks the spine to proceed with court reform we can expect the six conservative judges to hold veto power over the Democrats entire political agenda.  Not just this year, or next, but for decades to come. It is time in the opinion of this writer to expand the court. The number of justices has been changed five or six times. Such action is not new, but it sure as hell looks like it is necessary.

OPINION: Equal Opportunity Offense

We spend a lot of time arguing about conservative vs liberal

OPINION: Equal Opportunity Offense

By I. B. Freely 

“To learn who rules over you, simply find out who you are not allowed to criticize.” Voltaire

Changing Definitions

Things aren’t always as they seem, particularly with definitions changing over time. Nowhere is this truer than in politics. Hardly a week goes by without a ‘no true Scotsman’ fallacy being hurled at one side of the aisle or the other. At least part of the problem is one of definition.

Descriptors

The modern understandings of ‘liberal’ and ‘conservative’ are, slightly bastardized, adaptations of neutral descriptors, as in a ‘conservative wager’ and a ‘liberal sprinkling.’ The former generally used to denote restraint and the latter excess. Whether it is positive or a negative depends on the situation, an excess of freedom generally considered a good thing. An irony coming into play when one considers that those calling themselves ‘conservative’ advocate for the excesses of a free market economy and those labeling themselves ‘liberals’ support restraint in terms of access to firearms.

Us and Them

Another example of conflict comes in the forms of identity politics and who it is ‘okay’ to criticize. My fellow liberals aren’t going to like to hear this but the idea of ‘protected classes’ shows restraint as reflected in functional conservatism. What we are saying in terms of merging social equality with protected classes is “we are all equal, except for them, don’t dare even criticize them.” An attitude very much in line with the most staunch monarchists who, at least historically, have been in stark opposition to those calling themselves liberals.

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OPINION: Watching Democracy Die

OPINION:

Watching Democracy Die

By D. S. Mitchell

Wisconsin Outrage

Television images captured thousands of voters in Milwaukee, Wisconsin standing in three block long lines, face masks in place, showered intermittently with hail and rain, risking exposure to COVID-19; to exercise their right to vote. This did not need to happen. This should not have happened. Voting should not be an obstacle course. Voting should be one of the easiest things, we as citizens, ever do. It should be as easy as licking an envelope. The vote by mail push is meeting stiff resistance from the far right, particularly from Donald Trump. The politicians fear it would endanger their grip on power. Republicans in Wisconsin, and other states have used voter suppression to shrink the electorate and limit access to the polls for decades.

Anger

I was disgusted at the sight of what was happening in Wisconsin. Furious to my core. So angry, I was crying. Tears are not always shed in weakness, or defeat. Some tears are a physical manifestation of a rage so great that when held back can lead to plate smashing, door slamming, and window breaking. At other times tears are shed because the injustice of events is beyond the understanding of the human heart. In 2018, according to the Brennan Center For Justice “17 million Americans, or 8% of the nation’s electorate, were removed from voting rolls.” The clear intent was to deny particular segments of the population the right to vote.

The Whigs

In the first days of our country there was no such thing as voter registration; white men just showed up and voted. In the mid 1800’s voter registration laws began to emerge. These laws, were designed to limit participation, not encourage involvement.  One of the first voter registration laws in the country was written by New York state Whigs. The Whigs wanted to limit the voting power of Irish Catholic voters in New York City. The Irish were mostly Democratic party voters. But, the Whigs had a plan, and the legislative power to suppress the power of the growing Irish Catholic vote.

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KOCH BROS: Corruption & Hypocrisy

By Trevor McNeil & D.S. Mitchell

Kernel of Truth

The old adage that “only the good die young” was confirmed with the death of David Koch at the age of 79.  David Koch, and brother Charles, formed the two-headed demon that led one of the most unethical and unprincipled companies in modern memory.  Which is saying something with the likes of Enron as competition. Though, to be fair, like them or hate them, no one at Enron, as far as is known, used their vast fortune to fund and push for extreme hard right libertarian political ideology of small government and anti-regulation to transform U.S. government policy.

The Company We Keep

A group of hard Right, hyper-“patriotic”, pseudo-Christians emerged with the Obama election. These folks identified themselves as the “Tea Party”.  They were a cranky group of hustlers and howlers who seem to think the parable goes “turn the other cheek; and then pull a Glock”. A bit of a turn on the standard evangelical prayer group.

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News That Bites: Try A Little Kindness

Try A Little Kindness

By David L. Shadrick

Hello and welcome to Calamity Politics and “News That Bites” with David Shadrick and Calamity Clown.  Calamity has stood us up. She sent me a note scribbled on the back of a Nancy Pelosi fund raising letter telling me she intended to spend the afternoon curled up in Bernie Sanders’ lap, while he reads his “Medicare4All” plan aloud. 

It Ain’t Easy

This is probably the hardest article I have ever tried to write.  It shouldn’t be that hard to simply remind everyone that we all need to be a little bit nicer to each other.  As the world around us experiences the chaos that is existence, we need to remember to take a few extra minutes to embrace kindness, as a life choice.

Reserve Your Condemnation

When I do fundraising I often times have to remind volunteers not to become agitated or angry when someone doesn’t make a donation, or worse, is disrespectful.  I remind them that there are so many charities begging for money; and people have limited resources. I know what it’s like to be on a fund raisers platinum mailing list.

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THE FATAL FLAW OF CONSERVATISM

JUST MY OPINION:

The Fatal Flaw Of Conservatism

By T. K. McNeil

Divided Amongst Itself

It is a fact often observed, but no less true, that America is a divided country. What is often lost is that it has always been this way. A degree of partisanship is at the very basis of a healthy democracy. Otherwise, everyone might as well vote for the same person or party, like Russia. For democracy to be at its very best there needs to be a choice with a clear difference.  There is, however, a fatal flaw of Conservatism.

Fatal Flaws

What people are taking note of in America today is just how stark the differences have become. Political disagreements and street protests often devolve into  fatal violence. This despite the clear weaknesses of the ideals of liberalism and the more subtle but fatal flaw of conservatism.

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DIE, DIE, DIE

Die, Die, Die

By D. S. Mitchell

My World

Calamity Politics is a political blog that presents the world as I see it. I am hard on the Republicans, but they deserve it. My political comments today center around the ACA and the Republican attempt to restore pre-Obama times.

A Healthy Citizen

Everybody in this crowd wants to go backward. What the fuck, is going on in their heads. A healthy citizenry is one of the best resources a country has at its core. Every civilized western country has health care for all. No questions, no arguments, it is a recognized right of citizenry.

The Grand Lie

Why is that concept so difficult for American politicians to embrace. This great, grand lie, that we make it on our own is some dime novelists idea of the American ideal. The fact is, we have a lot of sick people in this country that cannot pay the exorbitant cost of health care, or health insurance without government help.

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