Overview: The recent ruling by the US Supreme Court to reverse the judgement of two lower courts that had previously barred immigration agents from stopping people in Los Angeles “without” reasonable suspicion has raised concerns about the court’s secret process and consequential decisions. The use of the “shadow docket” for such significant rulings, without extensive briefings or hearings, casts a shadow on the integrity of the nation’s ultimate arbiter of justice. The increasing use of this approach since the appointment of more conservative justices to the court has raised concerns about the crumbling of American institutions intended to ensure a balance of power between the three branches of government.
S.E. Williams
In recent days, the ongoing deluge of activities and disinformation flowing from the barrage of unorthodox actions by the current administration became background noise to the murder of Charlie Kirk.
Kirk, founder of the right wing media empire Turning Point, was a prominent Donald J. Trump acolyte, a Make America Great Again (MAGA) activist, and an unequivocal darling of right wing media and other extremists.
I extend my sympathies to his wife and family, however, who he was as a person, represented the antithesis of what I stand for and believe in. And let us not forget that Kirk, as a Second Amendment enthusiast, openly declared his position on gun violence stating, I think it’s worth (the) cost of unfortunately some gun deaths every single year so that we can have the Second Amendment to protect our other God-given rights. That is a prudent deal.” Well, I guess in response to that statement, it depends on who is making the deal. I don’t believe victims of gun violence or their loved ones (including Kirk’s) feel the same. And, as a strong advocate for gun control. Neither do I.
Many on the right proclaim Kirk a hero. They have a right to their opinion. However, my opinion of Kirk is quite different because what he honored, dishonored me, mine and so many others.
Kirk condemned the 1964 Civil Rights Act, calling it a huge mistake. He also blamed it for establishing what he referred to as a ‘permanent DEI-type bureaucracy’ . He even stated, “If I see a Black pilot, I’m going to be like, ‘Boy, I hope he’s qualified.'”
Kirk never missed an opportunity to spew insults toward Blacks. He once called George Floyd a “scumbag.” He also advocated for teachers to be kept from brainwashing children with critical race theory.
Kirk enthusiastically spread the Replacement Theory (an alleged plot to replace white people) stating, “The ‘Great Replacement’ is not a theory, it’s a reality.”
And then, there were his insulting comments regarding Black women like Joy Reid, the Honorable Ketanji Brown Jackson, Sheila Jackson Lee, and Michelle Obama. “[They] used affirmative action because they do not have the brain processing power to otherwise be taken really seriously. So they had to steal a white person’s slot.” Add to these statements his anti-immigrant, anti-muslim, anti-LGBTQ+ propaganda coupled with his stone-age attitude toward women in general and you will then understand what helped endear Kirk to his dear leader, Donald J. Trump.
This should help explain why the administration–with help from mainstream media–are working overtime to make Kirk into some type of martyr for conservatism. Kirk is being portrayed to those in the general public, who may be unaware of his history, as a young family man and rising political star who was assassinated because he was an influencer who advocated for Trump.
Regardless of how or why this man died, let us bear witness to the truth and not forget who he was and how he lived with his lips dripping with anti-everything that is not white. With that in mind, should this nation be flying flags at half staff to honor Kirk? Should Trump be posthumously presenting Kirk the Medal of Freedom, the nation’s highest honor for spewing hatred and division? I think not.
In the shadows
With all of this filling the airwaves and digital spaces, few may have noticed or stopped their normal routines long enough to process the most recent and consequential “shadow docket” ruling by the U.S. Supreme Court.
A few days ago, the nation’s highest court reversed the judgement of two lower courts that had previously barred immigration agents from stopping people in Los Angeles “without” reasonable suspicion and, according to the American Civil Liberties Union, based solely on any one of, or combination of, the following: “apparent race or ethnicity; speaking Spanish or English with an accent; presence in a particular location like a bus stop, car wash, or agricultural site; or the type of work a person does.”
“The Supreme Court serves the critical function of protecting minority populations against laws passed by majorities that could infringe on their rights. This allows it to preserve fundamental American values at times when a popular majority may try to deviate from them. The Court also enforces the separation of powers and constitutional checks and balances by invalidating actions by the executive and legislative branches that exceed their powers. Through its appellate jurisdiction, it serves as the court of last resort for parties appealing decisions from lower courts. Decisions by the Supreme Court are final and may not be appealed further.”
The Constitutional Law Center
As a result of the Supreme Court’s recent “shadow” ruling, federal agencies including the Department of Homeland Security (DHS) which has jurisdiction over Immigration and Customs Enforcement (ICE), are free to restart their aggressive immigration round-up activities in Los Angeles and elsewhere, including here in the inland region.
A case brought to the U.S. Supreme Court typically follows one of two possible paths. They either flow through what’s identified as the “merits docket” where a case receives an extensive briefing or hearings, with written comments regarding decisions from the justices whether they were part of the majority or minority decision in the case.
The second path a case being considered by the nation’s highest court can take, is by way of what’s called a “shadow docket.”
Historically, this approach was primarily used for procedural matters like scheduling and issuing injunctions. However, since Trump took office this time around in January 2025, although this isn’t the first time the court has used the shadow docket, in recent years the high Court has used it more frequently.
Today the justices are not only using it in far more instances it is also using it for rulings more significant than procedural. Experts note it is now being used twice as often as in previous years.
Such rulings are usually issued without comment or clarification regarding which justices supported the decision and which were against it.
Experts further note the “shadow docket” mission creep began with the appointment of more conservative justices to The Court including Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
At this point I believe it is also important to clarify terminology. Sometimes, the shadow docket is referred to as the emergency docket. The terms are interchangeable.
The recent ruling regarding ICE activities in Los Angeles must now be added to the other contrary rulings by shadow docket like the 2022 reinstatement of a gerrymandered Congressional map in Alabama despite lower court rulings that the map discriminated against Black people; and, the 2022 reinstatement of the Trump policy on water pollution that forbids states from dismissing infrastructure projects likely to contaminate rivers, lakes, and/or streams. In this instance, despite a federal judge having dismissed the Trump rule the high court reinstated it via the shadow docket.
Typically, cases on the shadow/emergency docket do not receive extensive briefings or hearings. In addition, the decisions are issued with little if any explanation and typically lack clarity regarding the position of each justice in relation to the case. Keep in mind that there is nothing in law prohibiting The Court from hearing oral arguments in shadow/emergency docket cases. This would certainly make the shadow/emergency docket process more open.
The Court’s use of the shadow/emergency docket and the lack of transparency that results, casts another long shadow on the integrity of the nation’s ultimate arbiter of justice. Consider this. According to the SCOTUS blog, “In the 2023-24 term, there were 44 matters on the emergency docket. In the 2024-25 term, through June 27 (the last day decisions were released), there were 113 matters on the emergency docket.” By any measure this is an exponential increase.
The Court’s actions regarding cases flowing through the shadow/emergency dockets also waves another bright red flag about the crumbling of American institutions intended by the constitution to ensure a balance of power between the three branches of government—the presidency, the legislature and the courts. Instead, today, all three branches are not only compromised, they are casting an ominous shadow across this country and weakening the fiber of its democracy.
Of course, this is just my opinion. I’m keeping it real.