Amy Coney Barrett Then: ‘Read The Opinion!’ ACB Now: Inappropriate To Expect Supreme Court To Explain Decisions

Today, the Supreme Court sent Justices Elena Kagan and Amy Coney Barrett up Capitol Hill to testify about the judiciary’s request for a substantial increase in security funding. The threats against federal judges — primarily lower court judges ruling against the Trump administration — are well-documented and the federal judiciary seeks approximately 10 percent more funding to address the threat. Though, if they’re being honest, the budget increase isn’t just for the personal security of the judges, as it also covers enhancements to the courts’ abysmal cybersecurity. But it’s a lot easier sell to focus on protecting judges from violent extremists than to point out that PACER sucks.

Given that Supreme Court justices don’t appear before Congress every day — in part because Chief Justice Roberts takes the position that testifying before the public is a separation of powers violation — the hearing touched on a number of topics that the justices rarely have to talk about. Including the infamous shadow docket.

On that subject, Alex Aronson of Court Accountability flagged this key nugget of Barrett’s testimony:

In 2022, Justice Barrett scolded the public to “read the opinion.” Speaking at the Ronald Reagan library, she tut-tutted those who would accuse the Supreme Court of imposing its naked policy preferences that reading the Court’s considered opinions would illuminate their deep and abiding commitment to the neutral application of the rule of law. Today, her stance on citizens who want to understand the Supreme Court’s reasoning is:

Golly, it’s almost like she was spouting disingenuous bullshit the whole time!

For the uninitiated, the shadow docket is the informal name of the Supreme Court’s practice of issuing increasingly expansive orders without argument or written explanation. It’s a tactic that we’ve recently learned grew out of the Chief’s desire to gut Obama-era environmental regulations despite lacking a legal justification, and has since metastasized into what Justice Jackson described as Calvinball — the fictional game from comic strip Calvin & Hobbes where the rules constantly change.

When Barrett tried to gaslight the country with her “read the opinion” speech, she added “[d]oes [the decision] read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?” fully aware that the Court was already heavily leaning on unexplained shadow docket orders on issues ranging from abortion to vaccinations to voting rights.

Four years and scores of unsigned emergency orders later, the work is gone and the pitch is how dare you question us?

In fairness to Justice Barrett, there is a reason why the Court historically did little to explain its shadow docket orders. When the use of the shadow docket more accurately fit the title “emergency docket,” these decisions amounted to glorified preliminary injunctions. Write too much about a case that nobody briefed, with a record nobody built, and the Court could accidentally send a premature and improper signal about its sense of the merits. As one justice recently wrote about the practice, it’s designed to strike a balance between “the lock-in risk of saying too much against the transparency cost of saying too little.”

That was Justice Barrett incidentally.

But that argument doesn’t withstand contact with reality. Avoiding a lock-in risk only matters if everyone agrees that these orders aren’t binding beyond the parties in the case and exist solely to maintain the status quo. Justice Gorsuch went out of his way to disabuse us of that notion. In a separate opinion, Gorsuch growled that judges “may sometimes disagree with this Court’s decisions, but they are never free to defy them,” referring to lower court judges continuing to follow existing caselaw rather than vibe check new precedent from between the lines of one-sentence shadow docket orders. In response to this aggressive expansion of shadow docket authority, Judge William Young apologized — though “passive aggressively quipped” is probably more accurate — on the record that he “simply did not understand that orders on the emergency docket were precedent.”

Which, of course, no one did because they never were before.

The cases that Barrett’s Republican majority chose to decide under the cloak of the shadow docket further undermine this it’s just an interim order canard. Rather than seek to maintain the status quo, the majority aggressively used shadow orders to bless Trump administration actions upending years — indeed, decades — of existing precedent. As the Court repeatedly ruled this Term, the harm of the Trump administration not getting to do whatever it wants, whenever it wants is an irreparable harm even if it’s taking unprecedented action.

The majority’s shadow docket strategy is designed, to borrow from Barrett’s past remarks, to be “purely results driven and designed to impose the policy preferences of the majority” without having to put in “an honest effort and persuasive effort.” Part of it is a cynical ploy to give the Trump administration freedom of action while preserving actual precedent so they can turn around and tell a future Democratic administration that these were mere interim orders.

But more fundamentally, the conservative justices are sick and tired of accountability. They threw a collective fit when their refusal to explain themselves accidentally left a loophole that the dissent jumped on. Sam Alito broke decorum to complain from the bench when Justice Sotomayor dismantled his opinion a couple weeks ago. And Justice Barrett bemoaned in her memoir that she had to spend her vacation defending the Dobbs decision to her brother-in-law. Defending your political priorities in the face of overwhelming legal precedent is hard. They don’t like it.

With apologies to Love Story: life tenure means never having to say your reasoning.

But, as Aronson notes, “the reasoning is the whole point.” Judge Michael Luttig — a conservative’s conservative if there ever was one — made the exact same point at the Society for the Rule of Law conference:

The Supreme Court has no power at all in our system and government, except that power that comes to it by virtue of [its] reasoned opinions of constitutional law. Whenever the Supreme Court is acting without opinions of law — at all — let alone, reasoned opinions of law. It is acting illegitimately, period. It doesn’t have the power of the purse. It doesn’t have the power of the sword. The only power it has, and the only power that it has to wield on behalf of the American people is the power of its persuasion.

Judge Nancy Gertner put it even more bluntly, explaining that the shadow docket has “all the formality of notes on a napkin.”

Which brings us all the way back around to the security funds that Kagan and Barrett came to Congress for in the first place. The Supreme Court’s steadfast refusal to explain its decisions while summarily overturning lower court judges ruling against the Trump administration inspired 12 judges to place blame squarely on the Supreme Court for its role in driving violent threats against the judiciary. Every time the Supreme Court knocks down crystal clear precedent without deigning to explain themselves, they leave a lower court judge looking like they were just “out to get Trump.” And while violence is hardly the province of one end of the political spectrum, the dudes who stormed the Capitol looking to hang Mike Pence are more likely to escalate their threats than a soccer mom with a peace sign on her SUV.

The threats facing judges are real. Justice Barrett and her fellow travelers have made it worse because they care more about imposing the policy preferences of their majority. But maybe they’ll get a few extra bucks for more federal marshals. A lot easier than having to explain themselves.

Earlier: Supreme Court’s Shadow Docket Scam Collides With Reality
District Judges Fight To Save The Rule Of Law While DOJ And Supreme Court Snicker
Supreme Court’s Shadow Docket Scam Collides With Reality
Supreme Court Just ‘Calvinball Jurisprudence With A Twist,’ Writes Justice Jackson
Supreme Court To Lower Courts: Ignore Actual Binding Precedent, Follow Our Unexplained Shadow Docket Vibes Instead
Amy Coney Barrett Forced To Discuss Destroying Constitutional Precedent During Family Trip
The Shadow Docket Memos Are Damning. So Naturally, The Right Is Talking About The Leak.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.