Supreme Court Justice Sonia Sotomayor (photo by Steve Petteway [public domain] via Wikimedia Commons

SCOTUS and the “Notorious SMS”

Guest Author
Guest Author

The Supreme Court of the United States has always been free from accountability. Oral arguments, final decisions, and written orders are the only aspects of justices’ work that are regularly made available to the public. The recent leak suggesting SCOTUS might strike down the constitutional right to an abortion was in part so stunning because it was the first time in modern history a draft decision has been made public while a case is still pending.

The idea is that by insulating the justices from the public, and from political debate, the better they’ll be able to stay above the political fray and act as fair arbiters of the law. If justices act as politicians in robes, then the whole judiciary loses credibility.

Additionally, justices don’t have an ethics code — unlike the rest of the federal judiciary — which means there is no mechanism to check bad behavior. (See: Clarence and Ginny Thomas) And, in recent years some of the conservative-leaning justices have grown more comfortable doing their work with as little transparency as possible, through the court’s “shadow docket.”

The shadow of the shadow docket

The Supreme Court has always had a shadow docket. The issue is the way it is being used by the Court’s current radically-conservative majority. There are normally over 6,000 shadow docket rulings each year. While most of these 6,000 are uneventful freezes of the status quo so that the Court can hear cases through the regular merits docket, an increasingly large number of these orders upend major portions of American law while flying under the radar.

In “Sonia Sotomayor’s Dissents and Opinions Speak to the People,” MacKensie Long reports that this court is forcing conservative outcomes on the public in secret. For example, in the past two years, the court has:

  • blocked COVID restrictions in California, making it difficult for states to enact common-sense public health measures...twice.
  • allowed Florida’s disenfranchising pay-to-vote law to go into effect despite it being flagrantly unconstitutional.
  • allowed the Trump administration to use funds to expand the border wall despite every single lower court finding that using those funds was unlawful.
  • and opened the door for more and more executions.

There are a few problems here.

  • First, pushing everything onto the shadow docket means that every order comes without much argument and with little oversight from the public. But when it comes to the shadow docket, the Court sees no problem with inserting itself in a case very early on to put its thumb on the scale in one direction or another — disregarding the benefits of public discussion.
  • Second, upending the law via the shadow docket seriously destabilizes both the law and the public’s ability to rely on the law. It also makes it extremely difficult for other judges, other government officials, and the public at large to figure out exactly what the law is on serious issues.
  • Finally, the Court’s right-wing majority appears to be using the shadow docket to engineer conservative outcomes that hides from the public that it is doing so.

This Court isn’t a nonpartisan, above-the-fray body. Rhode Island Senator Sheldon Whitehouse (D) found that in the 73 split-decision cases between 2005 and 2018 in which Republican Party donors had a clear interest, the donors’ side won every single time!

The only reform that undoes the current right-wing stranglehold on the Court is expansion. The Judiciary Act of 2021, a bill that proposes adding four seats to the Court, has already been introduced in both the House and Senate. Let’s not forget that the Republican Senators represent far fewer voters than the Democrats. This would possibly balance that inequity (or, perhaps, make it worse).

Our Republic (“if we can keep it,” in the words of Ben Franklin) can’t afford to continue having a Court that operates in the deep shadows.

The one whose voice and actions are a warning

But all of this should come as no surprise to anyone who’s been listening to the one person trying to get all of us to wake up to what’s happening with the Supreme Court: Justice Sonia Marie Sotomayor, the “Notorious SMS” (my words).

When she joined the court in 2009, Sotomayor became only the third woman ever to hold the position of justice, and the first Latina.

As the Court has moved further and further to the right, Sotomayor has made it her mission to shine a bright light on the effects her conservative colleagues’ decisions will have on everyday Americans. When the Court does something she sharply disagrees with, she says so in striking dissents.

For instance, when SCOTUS ruled in 2016 to allow the use of evidence obtained during an illegal police stop, Sotomayor wrote in her dissent about the experiences of those “subjected to the humiliations” of being stopped without any basis for suspicion. She cited W.E.B. Du Bois, James Baldwin, and Ta-Nehisi Coates to illuminate the indignity of always being subject to police searches, and the history of Black and Brown parents giving their children “the talk” about interacting with police.

During oral arguments in Dobbs v. Jackson Women's Health Organization, the case in which SCOTUS might overturn Roe v. Wade, “Notorious SMS” made clear what would happen if justices eliminated the constitutional right to an abortion.

She noted how it would further destabilize trust in the Court at a time when most Americans now think justices are motivated by their political preferences, not the law.

Sotomayor posited, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

Sotomayor hasn’t held back from calling out the abuse of process, either. For example, SCOTUS allowed Texas’ abortion ban to take effect via the shadow docket, which meant it didn’t have to publicly share its reasoning. All four dissenting judges filed opinions nonetheless, with Sotomayor writing, “The Court should not be so content to ignore its obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”

The importance of dissents, in the future ... and now

Through her dissenting opinions, Sonia Marie Sotomayor is leaving behind breadcrumbs for future advocates and justices in the hope they will use her arguments to right the wrongs of the current court. She’s essentially laying the groundwork for any rights taken away on her watch to be restored down the road.

Important dissents have righted the wrongs of the Court – Justices Curtis and McLean in the Dred Scott case, Plessy case’s Kentuckian Justice Harlan, or the Schempp case’s Justice Jackson. Each of these dissenting opinions laid the base for 13th, 14th, and 15th Amendments, striking down ‘separate but equal’ laws, and forced religious instruction in public schools.

“Notorious SMS” is speaking directly to the people, hoping to spur action in the present. The ways in which she shapes her dissents — with language that is easy to understand and even easier for phrasing headlines — seems intentional. She wants her words of caution and even calamity to reach those who might be impacted and, perhaps more important, those who are willing and able to do something about it.

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Written by John James Alexander, a pseudonym for a long-time Kentucky educator.

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