Dem
53
Ties
3
GOP
44
There were a couple of news items about the Supreme Court yesterday that, yet again, make it clear that reform is needed.
To start, it's no secret that we are not fans of the shadow docket. If (L) were not traveling right now, she'd be the one writing this item, and she might just write something a little more... Anglo-Saxon than (Z) is going to write. Anyhow, ProPublica took a long look at the current Court's use of the shadow docket, and learned that they (likely) just set a dubious record. We don't have information for some of the years in the distant past, but it appears that, for the first time, the Court made more rulings on the shadow docket than it did in cases argued in open court. Shadow docket rulings are pretty much the polar opposite of what Supreme Court decisions are supposed to be: There are (usually) no arguments, there is (usually) no explanation of how the Justices reached their conclusions (which means no guidance for lower-court judges), and we often don't learn how some/many/all of the justices voted.
There are, as far as we can see, only two reasons to use the shadow docket, and to use it so much. The first is to escape scrutiny, possibly for decisions that are partisan, or are somewhat dubious from a legal perspective. The second is because the Court is overwhelmed with so much business, it cannot give every case the full song and dance. After all, the Court has had nine members since 1869, and yet the population has grown by 500% since then. Either way, however, isn't it an argument for banning or severely limiting the shadow docket, and either creating a pool of 30-40 judges to make decisions, or else creating a new level of the courts with authority over certain kinds of cases (e.g., a "Constitutional Court")?
The second bit of news involves the sleaziest justice in Supreme Court history, the fellow who easily left Abe Fortas in the dust years ago. We speak, of course, of Clarence Thomas, who apparently has "deep ties" to Consovoy McCarthy, a law firm started in 2014 to argue MAGA-type cases, and which often argues before the Supreme Court. Consovoy McCarthy is getting substantial funding from dark money groups, to the tune of more than $33.5 million over the past decade.
The reason that Thomas has "deep ties" to the firm is that his chambers are basically Consovoy McCarthy's hiring office. Of the firm's 11 partners, six clerked for Thomas. We don't really understand why a person who has not practiced law in the private sector since the 1970s should have "deep ties" to ANY firm, much less one founded well after he joined the Supreme Court. But if that is how it is going to be, because of the largely incestuous world of Ivy League law schools, Supreme Court clerks and justices, and white-shoe law firms, then at very least Thomas should recuse himself from cases involving Consovoy McCarthy. He does not do so, of course, and would anyone be all that surprised if the next breaking news story is that he's gotten gifts or other favors from the firm? Maybe custom rims for his RV?
We don't know if the Democrats will do anything about SCOTUS the next time they are in a position to do something. If they want to, however, they'll have all the cover in the world. (Z)