Chief Justice John Roberts joins with liberals to criticize ‘shadow docket’ as court reinstates Trump-era EPA rule

Chief Justice John Roberts joined the court’s liberal justices in dissent, arguing that the court’s majority had “misguided” by granting an unwarranted request on its emergency docket.

“That makes the Court’s emergency docket not for emergencies at all,” Judge Elena Kagan wrote for the four dissenters. She said the Republican-led states and others that had asked the court for emergency relief had not shown that they would suffer the irreparable harm necessary to make their case.

“This Court may stay a decision under review in an appellate court only in extraordinary circumstances and on the most important considerations,” Kagan wrote. She said the challengers’ request for suspension was based on “simple assertions, on conjecture, not supported by any actual evidence.”

The majority measure, Kagan insisted, signals the court’s opinion on the merits even though the petitioners failed to show the irreparable harm that “we have traditionally required.”

The emergency docket, he said, “becomes just another place for the determination of the merits, except without a full report and argument.”

The five conservative justices did not explain their reasoning for reinstating the Trump-era rule.

The emergency file, referred to by some judges and outside observers as the “shadow file,” has come under increasing criticism by those who say major issues are being resolved without the benefit of a full schedule of briefings and oral arguments.

While liberals on the court, especially Kagan, have often criticized the use of emergency petitions, this is the first time Roberts has explicitly joined.

“We’ve seen Chief Justice Roberts join Democratic appointees in dissenting from some of the previous Shadow Court rulings,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of California College of Law School of Law. University of Texas, who is writing a book. in the shadow file. “But today’s ruling is the first time he has joined in publicly criticizing the majority for how he is using and abusing the shadow file. That is quite a significant development and a strong signal for the Court’s decision. de facto leader to send”.

In the dissent, Kagan wrote that the challengers had offered “no concrete evidence” that they would be harmed if the EPA rule was not reinstated. He specifically noted that they had waited five months after the lower court struck down the rule to file their application. Furthermore, he said, a federal appeals court will hear the dispute next month and that the rule currently in effect had been on the books for about 50 years.

Last September, conservative Justice Samuel Alito delivered a 10-point rebuttal in an unusual speech, defending the court’s practice when it comes to the emergency docket. He discussed the complications surrounding emergency requests and said judges do “the best we can” under the time constraints imposed by the situation. Alito called the criticism “very misleading” and stressed that “there is absolutely nothing new about emergency requests.”
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The court order on Wednesday reinstates a rule that restricts the authority of states under the Clean Water Act to deny federal permits for projects that affect waters within their borders. The Trump-era rule will go back into effect as the Biden administration issues a new rule that is expected to be finalized in the spring of 2023.

It’s a loss for more than 20 Democratic-led states, the District of Columbia, environmental groups and tribes that defied the rule set forth by the Trump administration in 2020. They said it limited the ability of states and local communities to have a say. in projects that could harm their communities. Challengers said Trump’s rule could lead to projects, such as a wetland mall, a hydroelectric project or oil and gas pipelines, that could alter waterways without state involvement.

Earthjustice, which represents environmental groups and tribes that oppose Trump’s rule, criticized the court’s order.

“The court’s decision to reinstate the Trump administration’s rule shows a disregard for the integrity of the Clean Water Act and undermines the rights of tribes and states to review and reject dirty fossil fuel projects that threaten their water.” said Moneen Nasmith, the group’s lead attorney.

A lower court had struck down the rule, prompting a group of Republican-led states and various industries to seek emergency relief from the Supreme Court.

This story has been updated with additional details.

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