The question is, do you want more conservative judges legislating right wing ideology from the bench?
the conservative majority, has been using unsigned and unexplained orders to a degree and in ways which really have no precedent in the court's history
The shadow, or emergency, docket, is the way many cases today, sometimes hugely consequential cases, are decided, without full briefing or oral argument, and without any written opinion.
These cases are brought to the court by a state, or a company, or a person who has lost in the lower courts, often at an early stage, and that loser is now asking the Supreme Court to block the lower court order while the case proceeds through the lower court appeals process, which typically takes many months. Most recently, the Supreme Court issued an emergency order blocking lower court decrees that would have made it far more difficult to obtain mifepristone, the pill used in the majority of abortions in the United States today. As is typical in these shadow docket cases, the court issued no written opinion in the case, though Justice Alito, one of the two dissenters, issued an angry explanation for his disagreement with the majority.
Up until relatively recently, these shadow docket actions were quite rare. The statistics tell the story, statistics compiled by Vladeck. During the 16 years of the Bush and Obama administrations, the federal government, the most frequent litigant in the Supreme Court, only asked the justices for emergency relief eight times--or on average once every two years.
But in the Trump administration, and with a newly energized conservative majority on the court, the picture changed dramatically. In just four years, the Trump Justice Department asked the court for emergency relief an astounding 41 times, and the court actually granted all or part of those requests in 28 of the cases.
In short, not only did the Trump administration aggressively seek to use the emergency docket, often leapfrogging over appeals courts entirely, but it succeeded with the tactic.
for example, the challenge to President Trump's controversial diversion of military construction funds to build his border wall. A federal district court judge, after hearing the case, ruled that the diversion was unconstitutional, and barred the administration from using the money for a different use than Congress authorized. Within weeks the Trump administration went to the Supreme Court with an emergency appeal to block the lower court order, and the justices restored the money diversion by a 5-to-4 vote, with no written opinion for either the majority or dissent.
these emergency rulings are supposed to be temporary, to allow the cases to play out through the appeals process in the lower courts, and then possibly to return for full consideration by the Supreme Court later.
But "the dirty secret is that later never comes," he says. "By the time the border wall case," or "all kinds of other challenges to Trump policies make their way back to the Supreme Court, at the far end of the normal litigation process, President Biden is in office and those policies have been discontinued, and the cases are thrown out."
That pattern, he says, was repeated over and over again, thus allowing Trump "to carry out policies that lower courts had held to be unlawful because the Supreme Court, through unsigned and unexplained orders" said, in effect, 'Go ahead President Trump, we'll deal with this later.'"
