U.S. Supreme Court's overuse of 'shadow docket' conflicts with the constitution | Opinion

Many know the larger-than-life figures in our government. Presidents like Barack Obama, George Bush, and Donald Trump need no introduction nor do their Vice Presidents like Dick Cheney or Mike Pence.

While many of us don’t know all 535 members of Congress, we at least, for today, know a few household names like Joe Manchin, Krysten Sinema, Bernie Sanders, and Mitch McConnell. But in the United States, the courts have remained gilded, hidden behind a veneer of ivory, primarily removed from the rat race and daily squabbles.

But, in more recent decades, we’ve seen the Supreme Court ease into the public eye, with Sandra Day O’Connor’s "Lazy B," Justice Sotomayor’s "Just Ask!", and the gregarious laughter and Rabelaisian humor of Justice Clarence Thomas thrusting the Court forward into the digital age.

Yet, for all the headway the court has made from the shadows on the front of individual justices, they’ve moved toward more dangerous and startling practice. What’s become known as the “shadow docket” should have us all lamenting.

What is the shadow docket?

The shadow docket is an interesting name for a program that started as an ability to quickly have the Supreme Court hear a case and deal with increasing caseloads, particularly related to war time judgments and immediate injunctive relief.

The U.S. Constitution does not describe a protocol for how the Supreme Court ought to issue judgments. In fact, the shadow docket- or emergency docket -isn’t unconstitutional. But it runs antithetical to our values, and makes it tremendously difficult for future justices and legal practitioners to adhere, or challenge, the constitutionality of rulings.

Under the common law, the name for English law from which American jurisprudence evolved, rulings scribed by a judge were given reasonings behind their individual decree.

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Examine Tuberville v. Savage

For example, in Tuberville v. Savage, a famous English case before the King’s Bench in 1669, Savage hollered uncouth comments towards Tuberville; upon hearing said actionable words, Tuberville proceeded to grasp the hilt of his sword and declared “[i]f it were not assize-time, I would not take such language from you”. After stating such a declaration, Savage savagely struck Tuberville.

Tuberville brought a claim against Savage, whereupon action, Savage stated affirmatively that Tuberville’s statement was meant to provoke him. In the resulting judgment from the pending litigation, the court stated the elements of assault under tort law -- acting intentionally to cause apprehension of an immediate harmful or offensive contact- and applied those facts to the case. In doing so, the Court rendered a judgment in favor of Tuberville stating in sum that Tuberville clearly stated he had no intention to fight Savage, thus, no assault was committed to bring forth Savage’s ire and Savage was guilty of battery.

This explanation in a judgment was given back all the way in 1669, back when the monarchy was still the overwhelming power in England and the House of Lords truly was a house full of lords. There was no silent decree of the Crown’s henchmen at work. Even back in the day, Anglo legal practitioners were used to methodical judgments and decrees.

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Without these reasonings voiced, an attorney cannot advise a client, nor can a judge in the future follow precedent; it would simply be judges applying whatever they’d like in the sua sponte. And in Tuberville v. Savage, for all to see, the Court put forth the elements of assault and how they apply to any case or facts.

This accessibility and transparency is crucial for any society, but especially with one of such storied history married to the Bill of Rights like the United States.

For the United States Supreme Court to rely more heavily on the shadow docket is antithetical to our constitution, our history, and frankly, just makes practicing law even harder than it already is.

 Brian Mounce is a Federal Public Defender and a professor at Christian Brothers University in Memphis.  

This article originally appeared on Memphis Commercial Appeal: Supreme Court 'shadow docket' overuse is antithetical to constitution