If there was any doubt about the growing threat of the “obscure record” of federal courts, the disastrous and opaque Supreme Court ruling overcoming the ban on unconstitutional abortion in Texas has erased it. This shadow memory system has become the modern equivalent of the smoky room, where decisions with powerful consequences are made in secret and without responsibility. The judiciary and democracy are not supposed to work.
In addition, the rise in this trend is directly related to the influx of Trump-appointed judges into federal courts.
In the case of the Texas abortion ban, the process was kept secret from the beginning. When the the law was passed effectively banning abortions after six weeks, a Texas district court judge agreed to hold a hearing at the request of doctors and clinics preliminary injection against. This was scheduled for Aug. 30, the Monday before the ban went into effect.
But on August 27, two judges on the fifth circuit appointed by Trump, Kyle Duncan and Kurt Engelhardt, joined by a very conservative Bush nominee, issued a three-sentence order that canceled the view and suspended all other proceedings in the case. And that was all: the judges did not include any explanation for his edict. The appellants immediately asked the court to allow the hearing or to decide the matter on its own. In another unexplained dictatorial order on August 29, the same three judges rejected the application. Check one for the shadow file: the ban was advancing.
Thus, on August 30, Texas health care providers went to the Supreme Court, asking him to govern. But the Court did nothing while the law went into effect Tuesday night. Then last Wednesday issued an order of a paragraph 5 to 4 that denies relief to health care providers and authorizes the continuation of the law. The majority, dominated by Trump-appointed judges, did not even explain why they rejected Chief Judge John Roberts’ call to temporarily suspend the law, so that lower courts and the Supreme Court could fully consider it with a “full briefing and oral discussion.” that through the hasty edict of “shadow memory”.
The result: a terrible law was enacted without even a hearing on its constitutionality, as a result of the peremptory orders of those nominated by Trump on the fifth circuit and the Supreme Court. As Justice Elena KaganElena Kagan: Senate Court to Investigate Supreme Court Texas Abortion Judgment and Supreme Court “Marriage” Declines to Block Texas Abortion Act Supreme Court Blocks Biden Eviction Moratorium MORE pointed out in disagreement, the court ruling was just the latest example of his “decision-making” which has become increasingly “irrational, inconsistent and impossible to defend”.
It has also become much more common. By the end of Trump’s presidency, his administration had sought 41 these court rulings, compared to only eight during the 16 years of the Bush and Obama presidencies combined.
The court granted nearly 70 percent of Trump’s requests, which caused enormous damage to rights in areas such as exemptions from crucial rules to help control the COVID-19 pandemic and immigration. So far, under Biden’s administration, these orders have done significant damage, including dump the temporary ban on evictions from disease control and prevention centers and recovering Trump’s horrible asylum policy “Stay in Mexico.”
Meanwhile, the use of the shadow medium in the lower courts is not limited to the fifth circuit, where the ban on abortion was heard. In another case, Amul Thapar, judge of the Sixth Trump Circuit, released the film decide the vote approve the use of a “form order,” without any specific explanation, to deny requests for compassionate treatment of inmates suffering from COVID-19. As the dissent noted, the result “contravenes” a court’s duty to provide reasons for its decisions and “erodes public confidence” in the courts.
This is deeply disturbing. It is essential for the rule of law that the courts explain the basis and reasons for their actions. This not only preserves public confidence, but is essential to the ability of legislators to decide whether to overturn a court’s ruling through legislation.
As federal courts increasingly make inexplicable decisions about the shadow house, the danger to our rights and our democracy becomes more evident. To curb this trend, the Senate must approve more Biden candidates in the federal courts that will oppose it. Congress should also consider other reforms, such as increasing the size of the Supreme Court or legislation to reform the obscure dossier.
Both progressives and conservatives have expressed concern over the threat of the shadow case in making appropriate court decisions. All our rights and our democracy are at stake.
Elliot Mincberg he is a Supreme Court analyst, a senior member of People For the American Way and a former senior supervisory and investigation adviser to the House Judicial Committee. Mincberg has investigated and analyzed the Supreme Court, the Department of Justice, religious freedom, and other civil rights / civil liberties issues for more than three decades.