“`html
The Supreme Court’s emergency docket, often referred to as the “shadow docket,” has recently been scrutinized following a New York Times report that highlighted a turning point in its use. The report declared that the deliberations over President Barack Obama’s Clean Power Plan in February 2016 marked the inception of the court’s modern emergency docket. Legal scholars like Stephen Vladeck have echoed this view, citing the February rulings as the birth of what is now known as the modern emergency docket. This framing, however, precludes earlier instances when the Supreme Court engaged with presidential initiatives through interim orders.
Critics like Jack Goldsmith, although in agreement with the Times’ emphasis on the 2016 orders as a hallmark of the court’s modern engagements, point to the ruling as the initiation of a more active judicial engagement with presidential policy through interim orders. However, such accounts overlook significant precedents, such as Justice Sonia Sotomayor’s New Year’s Eve order in 2013, which effectively contested a major aspect of the executive branch’s regulatory approach years before the Clean Power Plan reached the court.
Sotomayor’s move, which blocked the enforcement of the contraceptive mandate under the Affordable Care Act against the Little Sisters of the Poor, represented an early and significant engagement with a presidential initiative through an emergency interim order. It was an intervention that set a precedent both in procedural posture and ideological unanimity, as it was later ratified without dissent by a full court.
Further precedents align with this pattern, such as interim orders in Zubik v. Burwell and others, reflecting a long-standing practice of evaluating executive actions that might otherwise circumvent merits review due to procedural timing or enforcement structures. These cases predate the Clean Power Plan deliberations and challenge the narrative of a 2016 origin.
Stephanie Barclay’s article on SCOTUSblog delves into these dynamics, illustrating the historical continuity of the court’s emergency docket interventions rather than a sudden shift in 2016. The reporting on the doctrine’s mistaken birthday underscores not only the complexities of the court’s recent decisions but also the intricate balance of judicial review in an era marked by rapid executive actions.
“`