US Analysis-U.S. Supreme Court's 'shadow docket' favored religion and Trump
Protect the Supreme Court with a constitutional amendment
Constitutional amendments gave women the right to vote and limited presidents to two terms in office. Now we need a constitutional amendment to preserve the independence of the Supreme Court. © Provided by Washington Examiner At Austin College, where I am a rising senior and a prospective law student, I have had the opportunity to take multiple classes on constitutional law and American political thought. In these classes, my professors emphasized that the Supreme Court is at the nexus of our great system of separation of powers and checks and balances.
By Lawrence Hurley and Andrew Chung
WASHINGTON (Reuters) - As midnight approached on the eve of the U.S. Thanksgiving holiday, the conservative-majority Supreme Court granted emergency requests by Christian and Jewish groups challenging COVID-19 crowd restrictions imposed by New York state.
The twin 5-4 decisions in favor of the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish congregations were two of 10 decisions in the past year backing religious groups chafing under pandemic-related measures that forced them to close their doors or otherwise limit usual activities.
Overnight Health Care: Biden officials says no change to masking guidance right now | Missouri Supreme Court rules in favor of Medicaid expansion | Mississippi's attorney general asks Supreme Court to overturn Roe v. Wade
Welcome to Thursday's Overnight Health Care. The NFL is walking up the line of vaccine mandates, but isn't quite crossing it. If you have any tips, email us at firstname.lastname@example.org, email@example.com and firstname.lastname@example.org. Follow us on Twitter at @NateWeixel, @PeterSullivan4, and @JustineColeman8.Today: Biden administration officials said there are no changes coming to the CDC's mask guidance. The Missouri Supreme Court unanimously ruled in support of Medicaid expansion, and Mississippi wants the Supreme Court to overturn Roe v. Wade. Mississippi's attorney general asks Supreme Court to overturn Roe v.
All 10 requests were granted via the court's "shadow docket https://www.reuters.com/article/legal-us-usa-court-shadow-video/the-shadow-docket-how-the-u-s-supreme-court-quietly-dispatches-key-rulings-idUSKBN2BF16Q" in which emergency applications are decided hurriedly and sometimes late at night in a process that critics have said lacks transparency.
A Reuters analysis of emergency applications over the past 12 months offers a glimpse into the full range of parties seeking urgent relief from the top U.S. judicial body through the shadow docket. The justices have increasingly relied upon this process to make rulings in a wide array of cases without the normal deliberative process involving public oral arguments and extensive written decisions.
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The analysis found that the court repeatedly favored not just religious groups - another example of the expansive view it has taken in recent years toward religious rights - but also former President Donald Trump's administration, while denying almost 100 applications by other private individuals or groups.
Emergency applications were a key part of the court's docket during this one-year period that spanned a deadly pandemic and the contentious 2020 presidential election that Trump lost to now-President Joe Biden.
Pandemic-related restrictions and changes to voting procedures intended to help Americans cast ballots amid a public health crisis both became deeply partisan issues as Trump and his conservative supporters challenged them.
Anti-abortion movement eyes its holy grail
Anti-abortion advocates are hoping that their holy grail could finally be within reach, cheering Mississippi's new push to get the Supreme Court to overturn the 48-year-old Roe v. Wade decision.While the state's maximalist arguments against the landmark abortion rights ruling may not prevail even with conservatives holding a 6-3 majority on the court, the right sees this as their best opportunity in years.On Thursday, Mississippi Attorney General Lynn Fitch (R) filed a brief with the Supreme Court in a case involving a challenge against the state's law banning elective abortions after 15 weeks.
The court, which has six conservative justices and three liberals, received 150 emergency applications during this period seeking substantive relief and granted 29 such requests at least in part, a review of court records found.
(GRAPHIC - U.S. Supreme Court's 'shadow docket' in action: https://graphics.reuters.com/USA-COURT/SHADOW/gdvzyrdkapw/chart.png)
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Like the religious entities, Trump's administration prevailed on 10 occasions, mainly over its successful efforts to execute 13 death row inmates as it resumed capital punishment on the federal level for the first time since 2003.
The other nine requests granted by the justices were brought by states and other governmental entities, including two by Republican officials in South Carolina and Alabama that curbed efforts to facilitate voting during the pandemic.
Private petitioners that were not religious entities - including immigrants fighting deportation and 33 people who filed without the assistance of lawyers - were out of luck. None of their requests were granted.
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Before her death, Supreme Court Justice Ruth Bader Ginsburg recognized that Roe v. Wade -- the near 50-year-old landmark opinion establishing a constitutional right to abortion -- was in some trouble. © Chip Somodevilla/Getty Images North America/Getty Images WASHINGTON, DC - JANUARY 24: Anti-abortion and pro-choice demonstrators argue in front of the Supreme Court during the March for Life January 24, 2011 in Washington, DC. The annual march marks the anniversary of the landmark Roe v. Wade decision by the court that made abortion legal in the United States.
Of the 150 cases, 42 involved disputes over the legality of public health measures related to COVID-19 and 22 concerned fights over voting, many of which also were pandemic-related.
David Gans, civil rights director at the Constitutional Accountability Center liberal legal group, said the data indicates the court has a "serious legitimacy problem" in part because of the lack of transparency and the impression that certain litigants have favored status.
"The biggest losers are the American people. By engaging in rushed decision-making and issuing rulings with little to no reasoning available to the public, the Supreme Court is acting without the sustained consideration, reflection, transparency and accountability Americans expect from the Supreme Court," Gans added.
'FAST AND FLEXIBLE'
Unlike the 56 rulings the court issued after the traditional process of hearing oral arguments, the shadow docket decisions often do not reveal how the justices voted. While the New York religious challenge decided late on Nov. 25 came with a seven-page written decision, the court often provides little or no explanation in shadow docket actions.
Any litigant can file an emergency request to a single justice, who subsequently decides whether to forward it to the full nine-member court. Five votes are needed to grant a request.
Congress should butt out of Supreme Court's business
Society just can’t be so visually focused and superficial that a governmental entity’s supposed transparency hinges on video display. Reading transcripts requires more work, but generates more depth of understanding than watching television.Television is a medium of emotion. Inserting it into the nation's highest court necessarily changes the functioning of that court. Media theorist Marshall McLuhan explained in the early days of television 60 years ago that mediums have an effect on content and the processing of that content by audiences.
Of the 150 shadow docket cases, 73 were referred to the full court. The vote breakdown is known in only 14 of them. At least one justice publicly dissented in 41 cases. The liberal minority in 18 cases noted disagreement when the court granted a request.
Possible changes to how the justices manage the shadow docket are being considered by a commission formed by President Joe Biden to study Supreme Court reforms.
Experienced Supreme Court lawyers, both liberal and conservative, are not sure major changes are needed regarding the shadow docket.
A group of them submitted a report this month saying the justices should consider modest changes, including hearing oral arguments by telephone in some cases and issuing more written opinions explaining their reasoning. The lawyers opposed other proposals including changing the legal standard for when a request should be granted, saying that when handling emergency applications the court "must be fast and flexible."
Melissa Sherry, who has argued cases before the justices and is not a commission member, said the court does not always have time to explain itself. Sherry suggested that cases in which it overturns a lower court ruling "are the ones that call out the most for transparency and thorough written and reasoned decisions."
(Reporting by Lawrence Hurley and Andrew Chung; Editing by Will Dunham and Scott Malone)
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