The “Delicate Issue”...

"The 36-member commission...was instructed to spend 180 days studying proposed changes, holding public meetings and completing a report. But it was not charged with making a recommendation under the White House order that created it" @jonlemire https://t.co/uAv1f5VyPD

— Michael Tackett (@tackettdc) April 9, 2021

Is determined to make itself indelicate:

This is why the "shadow docket" is a problem: It's not just that it's busier than ever before; it's not just that more of these rulings are changing the status quo *during* litigation; it's that the Justices are using these emergency orders to change doctrine across *all* cases.

— Steve Vladeck (@steve_vladeck) April 12, 2021

Professor Vladek's concerns with the Supreme Court's "shadow docket" may seem too "inside baseball" for non-law professors, but it is important.

Ultimately, one of two things is true: Either Friday's ruling (and maybe others from this Term) is a misapplication of the Court's rigid standard for emergency injunctions, or that standard has changed—with no public acknowledgement. Neither answer is especially comforting.

/end

— Steve Vladeck (@steve_vladeck) April 12, 2021

How a court conducts its business is just as important as what conclusions it reaches. And the signs are not encouraging:

"As the Supreme Court has said for decades, its authority to issue that form of relief is very limited. There's a very widely cited in-chambers opinion by Justice Antonin Scalia from 1986 where he says the court is only supposed to issue such relief "sparingly, and only in the most critical and exigent circumstances," where 'the legal rights at issue are indisputably clear.' It's the 'indisputably clear' part that makes what Jim said so important. Everyone understands that the court made new law on Friday, that the court changed the scope and meaning and applicability of the free exercise clause," he explained. "Folks are going to disagree about whether or not this new approach is a good one. My point is, this is not something the court is allowed to do in a shadow docket ruling like this. Its own precedents preclude it from making new law in this context because, by definition, a newly minted right cannot have been 'indisputably clear.'"

The Court has taken to re-writing fundamental Constitutional law pretty much the way they issued Bush v. Gore:  with as little explanation as possible.  The opinion, like Bush, is per curiam, and quite brief for reaching such a major revision of law.  So there's one "delicate issue" that nobody is talking about.  The other is Justice Thomas.

Thomas feels free to publish whatever thoughts are on his mind. This is what bloggers do. I think he, and all of us, would benefit if he moved his musings to a personal blog, instead of misusing our tax dollars to issue official government statements. 

Justice Thomas’ statement ends (emphasis added): 

As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them. 

 So Justice Thomas acknowledges he wasn’t briefed on any of the interesting topics he wanted to discuss. He’s just making stuff up. This isn’t what Supreme Court justices do, or should do. I’m a little surprised that his colleagues haven’t publicly rebuked him for writing free-association statements. Such statements hurt the court’s credibility and abuse the privilege afforded Supreme Court justices.

We are shifting gears here; the opinion Thomas wrote was also a "shadow docket" opinion, and Thomas' dissent is little more than grumbling on his part.  But one can say the important issue is that he wrote it at all, and that the Court published it was part of the opinion.  There seems to be no opinion published other than Thomas', which is interesting considering how many decades passed before the Court released all the opinions in Bush v. Gore.

Justice Breyer recently opined on the subject of “court packing” (more correctly, changing the number of justices, something left to Congress and not set by the Constitution).  That's the "delicate issue" everyone thinks is so dangerous to the validity and stability of the Court right now.  Maybe he should be more publicly concerned about matters closer to home that affect the integrity and reputation of the Court.  Justice Thomas is not just a blogger; he’s a troll.  But he sits on the highest court in the land.

Seems to me that’s the real “delicate issue” of the Court.  Well, that and how the shadow docket is being used and abused to turn every decision into one where the Court doesn't have to explain itself, or just let the cranks speak.  Maybe increasing the size of the Bench is not such a bad idea, after all.  The Court itself is certainly making it easier to make that argument.