The five members of the court who granted the request from Louisiana, other states and the oil and gas industry did not explain their reasoning, which is common in emergency requests at the court.
But Justice Elena Kagan, dissenting along with Roberts and Justices Stephen G. Breyer and Sonia Sotomayor, said her conservative colleagues were turning what critics have called the court’s “shadow docket” into something it was never intended to be.
The majority’s order “renders the Court’s emergency docket not for emergencies at all,” Kagan wrote. “The docket becomes only another place for merits determinations — except made without full briefing and argument.”
Alito lambasts use of term ‘shadow docket’ to describe the emergency applications at Supreme Court
Kagan said the applicants had waited months to bring the request and provided no evidence that they would suffer irreparable harm if the Supreme Court did not intervene, which is one of the essential elements necessary for putting on hold a lower court’s order.
Democratic members of Congress have been increasingly critical of the court’s use of the emergency docket, which has expanded since Justice Amy Coney Barrett joined the court to provide a more consistent conservative majority. She granted the stay along with Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh.
Stephen Vladeck, a University of Texas law professor who has documented the court’s use of the shadow docket, said Wednesday’s order was significant for what it says about the chief justice’s role on the court.
“This is the ninth time that Chief Justice Roberts has publicly been on the short side of a 5-4 ruling since Justice Barrett’s confirmation,” Vladeck said. “Seven of the nine have been from shadow docket rulings. This is the first time, though, that he’s endorsed criticism of the shadow docket itself.”
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The fight is over a rule put forward by the Environmental Protection Agency during the Trump administration. It limited objecting states’ ability to stop pipeline and other projects that could pollute navigable waters regulated by the Clean Water Act.
The Biden administration said it is working on rewriting the rule, but that will not happen for another year.
A district judge had thrown out the Trump-era rule and the case is now before the US Court of Appeals for the 9th Circuit. The Supreme Court’s action puts the district court’s ruling on hold and leaves the Trump-era rule in effect for now.
The court’s order came in Louisiana, et al. v. American Rivers, et al.