JONATHAN TURLEY: Judge Talwani and why liberal complaints about the ‘shadow docket’ are so hollow.
As with the national injunctions that plagued the Trump administration in its first year, this tactic was all too familiar. Litigants would go to liberal judges in Washington, Boston, and other blue cities to secure injunctions that would take years to fully litigate. That approach effectively allowed individual judges to pursue their own preferred policies or to prevent a president from carrying out promises made during an election. At most, the president might have a year left after these cases slogged through the conventional appellate process. It is an administrative version of the old adage that “justice delayed is justice denied.”
What concerned the justices was that many of these injunctions directly contravened earlier precedent, exposing the cynical purpose of these orders. For a president to be able to carry out major changes, he had to run a gauntlet of hundreds of judges, any one of whom could effectively negate reforms. In response, the Supreme Court ramped up the use of the emergency docket and cracked down on national injunctions, quickly reversing the rapidly incr
With the midterm elections rapidly approaching, the odds favor challengers in either running out the clock or prevailing on the merits on the mail-in ballots. But Talwani and some other judges have reinforced suspicions of the Roberts court that some courts are willing allies of partisan groups in seeking to gum up the system.
Ironically, Roberts is one of the most likely conservative justices to be concerned with the Trump administration’s effort to force election integrity reforms on the states. Either way, it is the shadow of these judges, not the docket, that is casting the most ominous concern for many of the Supreme Court justices.
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