The Shadow Docket Is John Roberts’ Disappointing Legacy

Chief Justice John Roberts was the driving force behind the rise of the Supreme Court’s emergency docket as a powerful tool to empower the activist conservative majority — that’s the main takeaway of a cache of memos leaked to the New York Times. Roberts’ immediate motivation was to enforce the major questions doctrine, another tool of conservative activism that he has made his signature contribution to the court’s jurisprudence. In retrospect, the convergence between the emergency docket and the major questions doctrine was no coincidence. Taken together, the docket and the doctrine will define the legacy of the Roberts Court.

It was already public knowledge that the 2016 environmental case of West Virginia v. EPA marked the first time the Supreme Court used its emergency powers in a new way that has since become standard. To simplify, the court broke precedent by issuing an order blocking the Obama administration’s Clean Power Plan from going into effect. The court did so even though a challenge to the legality of the Environmental Protection Agency’s plan hadn’t yet been addressed by the US Court of Appeals for the DC Circuit — and even though the appellate court had turned down the petitioner’s request to block the regulation in the meantime.