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Opinion | The Problem With the Supreme Court’s “Shadow Docket”

But when a justice issues an opinion in connection with a dispute that the court has expressly declined to decide, the justice is acting outside this narrow constitutional mandate and using his or her position to influence social issues in just the way the framers thought should be left to the people and their elected representatives to resolve.

When the court declined in 2019 to accept an appeal of an Indiana law prohibiting abortions motivated by the sex, race or disability status of the fetus, Justice Thomas attached a long opinion indirectly arguing in favor of such laws by linking abortion to early-20th-century eugenics practices. Later that year, Justice Brett Kavanaugh strongly signaled that with his appointment to the court, there were a majority of conservative justices receptive to overturning old rulings giving Congress wide latitude to delegate lawmaking powers to administrative agencies. Far from acting as the dispassionate umpire of legal disputes the framers envisioned, Justice Kavanaugh was basically suggesting that new lawsuits seeking profound changes to our current system of government would be favorably received.

The issuance of cert-denial opinions also creates impartiality problems for justices obligated to resolve cases in as neutral, unbiased and fair-minded a manner as possible. To enable them to do this, the Constitution gives justices a strong position of independence from political pressures. Moreover, a federal statute reinforces this constitutional norm by requiring any justice or other federal judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

And it has become routine for nominees to the court, in their Senate confirmation hearings, to refuse to answer questions about controversial legal issues like abortion and gun rights on the grounds that they might be prejudging an issue that could come before the court.

In cert-denial opinions, however, justices frequently prejudge legal questions in ways that create serious impartiality problems in cases the court later accepts for review. A stark example of this is the challenge to New York’s requirement that people demonstrate a special self-defense need for carrying concealed firearms in public that the court is hearing on Wednesday. In a cert-denial opinion issued by Justice Thomas last year, when the court denied review of a ruling upholding a New Jersey concealed-carry requirement similar to New York’s, he made a lengthy historical argument concluding that the Second Amendment protects some form of public carrying of firearms.

Perhaps not surprisingly, this is the argument now being made by the gun rights’ plaintiffs in the New York case. Just as troubling, in a portion of Justice Thomas’s opinion that Justice Kavanaugh joined, they criticized the main lower court ruling upholding New York’s concealed-carry requirement. How can anyone seriously contend that the impartiality of these justices cannot “reasonably be questioned” in the New York case?

Some might argue that justices also create future impartiality problems when they issue unnecessary separate opinions or make gratuitous comments in cases the court actually does decide. These practices are not ideal and have been criticized, but in these situations at least the justices are issuing them in connection with deciding cases or controversies as authorized by the Constitution.

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