Precisely Why Clarence Thomas Will Never Recuse Himself

By 5-4 vote (with Chief Justice Roberts joining the progressives in dissent), #SCOTUS issues shadow docket stay of district court decision that had vacated a Clean Water Act certification rule. Per Kagan, J.: "That renders the Court’s emergency docket not for emergencies at all." pic.twitter.com/yX6qvSrzLc

— Steve Vladeck (@steve_vladeck) April 6, 2022

"We’re the Supreme Court, bitches!”

In practical terms, this reinstates a Trump administration rule re: when and how states can provide certifications that allow for discharges of pollutants into navigable waters.

— Steve Vladeck (@steve_vladeck) April 6, 2022

The highest court in the land is now Camp Runamok.

The most grants I've ever found from a single Term is 24 during OT1985 (predominantly in death penalty cases). The recent record is 20 (during both OT2019 and OT2020).

11 at the halfway point is a lot, because the recent trend has been to have even more grants over the summer.

— Steve Vladeck (@steve_vladeck) April 6, 2022

Roberts isn’t even putting a finger in the dyke. Not that he can, anyway.

Justice Barrett on Monday: "Does [the decision] read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort?"

Justice Barrett on Wednesday: https://t.co/bBm7j1mXq6

— Steve Vladeck (@steve_vladeck) April 6, 2022

This is the constitutional crisis journalists are always yammering on about. But all they understand is politics; they don’t understand what’s happening in the law.

When I first wrote the shadow docket for the @HarvLRev in 2019, I argued that the most problematic shift in #SCOTUS's behavior was its seeming conversion of emergency applications into truncated merits determinations:https://t.co/dHAxfGh0nH

Today's ruling all-but confirms it. pic.twitter.com/S7joLrQTGc

— Steve Vladeck (@steve_vladeck) April 6, 2022

(Indeed, I can't recall another shadow docket ruling issued so early in the morning.)

— Steve Vladeck (@steve_vladeck) April 6, 2022

This is also the true threat to democracy. Not because the republic is going to come tumbling down, but because the Supreme Court is declaring its independence from all but the ideology of 5 of its members. The court is traditionally bound by its limitations, which are not just its reliance on other agencies for enforcement of its rulings. It binds itself to precedent and agreed upon rules, and given its sweeping (but still limited) authority, its power to be the “final word,” it has always acted with a certain humility and awareness of the burden of its responsibility.

OMG, I had forgotten how Justice Jackson died.

He had a massive heart attack and was confined to the hospital but LEFT IT to be on the bench when Warren announced Brown v. Board of Ed. so he could show it was a UNANMIOUS opinion.
He died later that year.

— Elie Mystal (@ElieNYC) April 6, 2022

Chief Justice Warren understood the importance of Brown v Board, and held the opinion until he could get unanimous support for it. Justice Jackson understood the importance of that. The Roberts Court just understands the power if a simple majority; and absolutely nothing more.

This is a very serious problem.