The shadow docket is a ‘central legacy’ of the Roberts court
It usually takes decades to understand things like this — until the internal papers of Supreme Court justices are made public.
But The New York Times has obtained seven confidential memos the justices exchanged in 2016 showing how they “stumbled into a new way of conducting their work in major cases on presidential power, short-circuiting longstanding procedures meant to ensure careful consideration and reasoned opinions.”
In the memos, the justices debated taking an unprecedented step: halting a major climate change initiative from President Obama before any lower court had addressed its lawfulness. Then, on a 5-4 vote along partisan lines, the court took that step, without explaining its reasoning.
Emergency orders based on abbreviated briefing and almost no deliberation now are commonplace — notably in cases arising from challenges to presidential actions, says the Times.
Critics call this process the “shadow docket.”
Since 2016, “the emergency docket has swelled into a major part of the court’s business, as the justices have short-circuited the deliberations of lower courts. The decisions are technically temporary, but are often hugely consequential,” says the Times.
Using the shadow docket, the court has granted President Trump “more than 20 key victories on issues from immigration to agency power,” a separate Times article says.
More on how Americans can protect themselves from surveillance
The Senate passed on Friday and President Trump has signed a bill extending the Section 702 program of the Foreign Intelligence Surveillance Act until April 30, giving lawmakers more time to debate proposed reforms.
I wrote about this last Thursday, with information from the American Civil Liberties Union as it urges Americans to contact their lawmakers about the legislation.
On Friday, The New York Times published a guest essay titled “We disagree on a lot. But we know this law must change,” by Sens. Mike Lee, R-Utah, and Dick Durbin, D-Ill.
Here are excerpts from their article that show why lawmakers of both parties are so concerned about risks to Americans’ privacy:
“Section 702 doesn’t allow the direct targeting of Americans, but their communications are still often gathered during the warrantless surveillance of foreigners abroad. Once the government has this data, agencies then have the ability to search through it. And they do: Transparency reports reveal that thousands of such searches are performed every year. A federal court previously found that some the FBI had conducted had violated the Fourth Amendment.
“Predictably, without a requirement for court approval of these searches, abuses have been rampant. As a recent report from the Brennan Center for Justice highlighted, FBI agents in recent years have searched for the communications of ‘protesters across the political spectrum; members of Congress; a congressional chief of staff; a state court judge; multiple U.S. government officials, journalists and political commentators; and 19,000 donors to a political campaign.’ In a time of extreme partisanship, these abuses have provoked bipartisan outrage.”
Lee and Durbin have proposed a Security and Freedom Enhancement Act, which they say is a compromise that would reauthorize the “valuable core of this tool while enacting reasonable safeguards to protect the Fourth Amendment rights of all Americans.”
“The government would still be able to check its databases to uncover connections between targeted foreigners and Americans,” Lee and Durbin say. “But it would have to get court approval in the small number of cases in which these searches have generated results and the government has a proper basis for gaining access to the contents of the communications. Importantly, our warrant requirement also contains robust exceptions for legitimate emergencies, so that we can balance civil liberties with legitimate security needs.
“Our bill would also cut off another form of warrantless surveillance: the widespread practice of circumventing the Fourth Amendment by purchasing Americans’ sensitive information from data brokers.
“The Department of Justice (including the Drug Enforcement Administration and the FBI), the Department of Homeland Security (including ICE, Customs and Border Protection and the Secret Service) and the Defense Intelligence Agency have purchased cellphone location information for millions of Americans. Such information is highly sensitive and can reveal intimate details of that person’s life. Even more troubling, artificial intelligence could supercharge such surveillance, allowing the government to harvest and analyze mass quantities of highly personal and sensitive information about Americans without court approval. Our legislation would close these loopholes — again with pragmatic exceptions to accommodate legitimate safety and security needs.”
You can call the Capitol switchboard, (202) 224-3121, and be connected to the offices of your representative and senators. To email your House member and your two senators, you can connect to their websites at Congress.gov. Most lawmakers seem to only accept emails from their constituents, but these leaders accept emails from Americans nationwide, at:
House Democratic Leader Hakeem Jeffries
Senate Democratic Leader Chuck Schumer
Senate Majority Leader John Thune
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