Fast Facts for September 6 & 7, 2021
I have two words for you and trust me – you’re going to be hearing them a lot pretty soon– those words — shadow – docket.
That’s the one thing in common with the Supreme Court’s latest controversial decisions. Of course, the move *not* to get involved in Texas abortion case, but also, the ruling that ended the eviction moratorium, the ruling that reinstated a Trump-era immigration policy for asylum seekers, federal executions, Covid19 restrictions, voting rights and many more… just this year.
All these controversial issues were decided by way of the “so-called” shadow docket.
And now the House and Senate Judiciary committees are going to investigate.
I know the term sounds kinda shady. But the truth is the “shadow docket” has been around since the formation of the Supreme Court. The shadow docket refers to the thousands of decisions the Supreme Court hands down each term that defy its normal procedures. That normal procedure includes the “merits docket” where the justices receive full briefings, hear oral arguments, and deliver lengthy, signed opinions. Cases decided by way of the “shadow docket” lack that public deliberation and transparency. They often come as a result of a request for “emergency relief” but the rulings themselves do not generally include information about how each justice voted or why the majority came to a certain conclusion and often come down in the middle of the night. Hence – the word “shadow.”
Historically, the shadow docket was reserved for denials of uncontroversial petitions and mundane scenarios. But in recent years – the shadow docket has grown substantially and the types of cases decided under the shadow docket have also shifted. More recently the court has started resolving politically charged disputes using the shadow docket and these rulings are creating new precedents for lower courts to follow.
I mentioned the House and Senate Judiciary committees earlier – those lawmakers want to hold a hearing about the use of the shadow docket by the supreme court. But a date for those hearings has not been announced. It’s worth noting –a House subcommittee actually held a hearing about the court’s shadow docket in February of this year. No action came of that hearing.
Watch House subcommittee hearing on shadow docket here.
PLUS
The President has ordered the review, declassification and release of some sensitive September 11th government documents.
This all comes as we move closer to the 20th anniversary of the September 11th attack and the President is facing increasing pressure from survivors and families of victims. President Biden signed an executive order just a few days ago saying Americans continue to seek full accountability for those horrific attacks and deserve to have a fuller picture of what their government knows about the attacks.
So what are we expecting to get?
No later than September 11th 2021, we could get some declassified FBI communications documents from 2016 stemming from a lawsuit brought by the families of 9-11 victims.
The President then ordered the Attorney General and other heads of departments within 120 days — to complete declassification reviews of all interview reports, analytical documents, investigative findings, phone records and possibly bank records from the FBI’s initial investigation of the 9-11 attacks
Within 180 days a declassified review must be completed for all records from any separate FBI investigation into any of the potential individual subjects connected to any agency relationship with a foreign government.
When each declassification review is completed the Attorney General is ordered to make the declassified information publicly available.
The President specifically said the indiscriminate release of classified information could jeopardize national security and he’s not going to do that. But he said certain information should not remain classified when the public interest outweighs any potential threat to national security.
Read President Biden’s executive order here.
