John Roberts embodies MAGA cowardice

One would think, in order to rise to the level of a Supreme Court justice, it would behoove a person to be fond of a rigorous debate. Not so with John Roberts, who is no less than the Grand Poobah of the berobed arbiters of constitutionality. A devastating recent report from the New York Times has exposed how the chief justice led the way to the escalating abuse of the shadow docket, a Court power once reserved for emergencies but that is now the primary tool of the institution’s conservative justices to evade having to debate or even explain their decisions in a lengthy and reasoned ruling available for all to examine. While this revelation is just the latest in a series of scandals involving the Court, it ties into a larger pattern that has animated and defined the MAGA movement from its very beginning: a cowardly aversion to robustly debating ideas.

The term “shadow docket” itself sounds like wonky legalese, but in practice it’s quite simple. The Court has the power, which has traditionally be reserved for emergency situations, to issue temporary orders while the case itself awaits final judgment. As the Brennan Center for Justice explains, these “typically involve requests that the Court temporarily lift lower court orders” and “usually involve limited briefing, no oral argument, and rulings with little or no analysis of the Court’s reasoning.” The granting of shadow docket requests were once exceedingly rare and granted only for cases under an imminent deadline, such an inmate on death row needing a stay of execution to give his lawyers time to finish an appeal.

But with Donald Trump in office, the conservative Court is using the shadow docket as a back door to issue rulings upholding the administration’s unpopular — and often legally questionable — policies, while having to avoid explaining themselves to the public. Times reporters Jodi Kantor and Adam Liptak have pinpointed a winter night in 2016 as the turning point, when the justices “issued a cryptic, one paragraph ruling” on Barack Obama’s Clean Power Plan. Since then, according to their count, the Court has sided with the Trump administration in over 20 cases without “the kind of rigorous debate that the justices devote to their normal cases.” Most of these followed a Trump loss in the lower courts — and came with considered judicial opinions that were published. But the Supreme Court effectively took those carefully reasoned and evidence-heavy decisions and threw them in the trash with no explanation.

Since shadow docket rulings are unsigned, we can’t know for certain the usual tally of supporting and opposing justices. Still, it’s a safe bet, based on judicial philosophies, past rulings and inclinations — not to mention the evidence compiled by Kantor and Liptak — that the Court’s conservative justices have been the drivers of these decisions.

There are many theories swirling around for why they have increasingly chosen to abandon their basic duty to legal transparency. And the likeliest one is also the simplest: They’re cowards.

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No matter how poorly they might be constructed, majority opinions have the force of law. Publishing them means that other people can read and scrutinize them, and mock the justices when they write illogical, unsupported or embarrassing opinions. Rather than endure the shame of public scorn — which would still make no material difference to their levels of power— the justices would rather hide their views.

Though they may occupy the highest spot on the judicial bench, the Court’s conservative members have revealed that, with these gutless actions, they are not much different than the rest of MAGA. As I argued in my 2018 book “Troll Nation,” what really kickstarted the MAGA movement was that conservatives had basically run out of arguments. On nearly every issue of national importance, right-wing views had failed both from a logical perspective and in practical terms, causing all manner of social and environmental ills. Trump ushered in a new era for Republicans, one where they no longer felt a need or duty to even feign interest in good faith debate. So they turned to MAGA’s political strategy of obfuscation through trolling, distraction theatrics, outright lies and, when all else fails, simply refusing to engage at all.

As chief justice, Roberts likes to present himself as a sober-minded intellectual who couldn’t be more different than the blathering snake oil salesman in the White House. But the New York Times investigation, which is based on leaked memos, reveals that Roberts, like Trump, lacks any real interest in fostering fair-minded debate.

The chief justice was the driving force behind issuing a shadow docket ruling to derail the Obama administration’s pollution rules and to sideline what he viewed as a recalcitrant Environmental Protection Agency. In private memos, he justified himself by arguing that the Court would eventually rule against the EPA anyway. Justice Elena Kagan wrote a forceful memorandum outlining why using the shadow docket was a bad idea. With the Court divided 4-4, it was former Justice Anthony Kennedy who gave the chief justice — and obfuscation — the win. Roberts, write Kantor and Liptak, “was predicting the ultimate outcome of a case that had barely begun to be litigated.”

Few are naive enough to think Supreme Court justices have no preconceptions about how a case will go. That’s not what Roberts was doing in this case. He was instead dispensing with even the pretense that he was open to hearing the Obama administration’s arguments. Tellingly, this case centered on climate change, an issue that perfectly illustrates how the right has abandoned all attachment to facts or reason in favor of tribalistic impulses and tantrums. In 2016, after Republicans had spent decades trying to argue with science, the evidence about the reality and gravity of climate change overwhelmed all conservative objections. The GOP could have admitted defeat and gotten on board with trying to save the planet. Instead they adopted the Trumpian refusal to debate the issue at all. In lieu of argument, all the right had to lean on was trolling, mostly in the form of incoherent jokes about how winter still happens, or yelling “Drill, baby, drill,” or Trump’s favorite — complaining that windmills are ugly, as if oil wells aren’t.

As the New York Times notes, nowhere in the memos is a mention of “the dangers of a warming planet as one of the possible harms the court should consider.”

This is the same avoidance mentality that has led to the era of the shadow docket. The Court can’t or won’t defend its reasoning, so they have taken to simply sidestepping altogether the questions they’re supposed to be considering. 

Since the Times report appeared, MAGA’s intellectual cowardice has been on full display. As Kathryn Rubino wrote at Above the Law, while right-wing punditry is all up in arms trying to figure out who leaked the memos, they are ignoring what this story says about the Supreme Court’s ethical collapse. This in itself speaks of the MAGA coalition’s cravenness. They can’t defend Roberts or his methods, so instead they are demanding that all the information about how the chief justice operates be concealed from the public eye.

This hostility to transparency is endemic to MAGA for a reason. Republicans increasingly don’t want the public to know what they’re thinking or what they’re doing because, on some level, they know it’s indefensible.