"The Shadow knows."

December 28, 2022

          In a 1930s radio drama, the fictional character “the Shadow” had the “power to cloud men's minds.” The introduction to the show included the tagline, “Who knows what evil lurks in the hearts of men? The Shadow knows!” The point of the intro was to create an aura of mystery to keep the audience in suspense about the outcome of the 30-minute drama. The Supreme Court’s reactionary majority has created its own version of “the Shadow”—the Shadow Docket by which it issues freewheeling, unbounded, and unprincipled decisions that follow the rules of Calvinball.

          For those of you unfamiliar with Calvinball, here is the complete explanation:

Calvinball is a game invented by [cartoon characters] Calvin and Hobbes. Calvinball has no rules; the players make up their own rules as they go along, so that no Calvinball game is like another.

          If you are confused by a newsletter that begins by mixing references to “the Shadow” and Calvinball, “there is nothing wrong with your television set.” On Tuesday, the Court’s reactionary majority used its “Shadow Docket” to indefinitely extend a Trump-era policy known as “Title 42.” Trump implemented Title 42 to exclude asylum seekers from the US because they might be carriers of coronavirus. The Biden administration concluded that the “public health emergency” ended last April and ordered the termination of Title 42’s exclusion of asylum seekers from the US.

          Nineteen states sued to keep the Title 42 public health exclusion in effect—but not because they fear an ongoing influx of Covid-carrying asylum seekers. Instead, they seek to indefinitely extend an emergency public health regulation to bar entry of asylum seekers into the US because they fear a looming immigration crisis at our southern border. That logic makes perfect sense—but only under the intentionally chaotic rules of Calvinball.

          In a stupefying order (located here), the Court’s conservative majority agreed to indefinitely extend an expiring public health regulation to solve an immigration crisis. The majority’s action was so illogical that even Justice Gorsuch could not join the majority. Gorsuch wrote:

[T]he [health] emergency on which those orders were premised has long since lapsed. In April 2022, the federal government terminated the Title 42 orders after determining that emergency immigration restrictions were no longer necessary or appropriate to address COVID–19 . . . .

The only plausible reason for stepping in at this stage that I can discern has to do with the States’ second request. The States contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it. The only means left to mitigate the crisis, the States suggest, is an order from this Court directing the federal government to continue its COVID-era Title 42 policies as long as possible . . .

Today, the Court supplies just such an order. For my part, I do not discount the States’ concerns. Even the federal government acknowledges “that the end of the Title 42 orders will likely have disruptive consequences.” But the current border crisis is not a COVID crisis.

[C]ourts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.

          Over the dissent and objections of Gorsuch, Jackson, Kagan, and Sotomayor, the Court’s conservative majority used the Shadow Docket to act as “policymakers of last resort” by extending a public health policy to address an immigration crisis—the solution to which is within the purview of Congress and the President, not the Court.

          The Shadow Docket is designed to allow the Court to engage in “administrative management” of its calendar so that the Justices have sufficient time to rule on emergency applications before developments in underlying cases moot the justices’ ability to rule on those applications. See Ian Millhiser’s explanation of the Shadow Docket in Vox, The Supreme Court’s enigmatic “shadow docket” is Trump’s best friend.

          The Court’s decision to indefinitely extend a superseded Covid-era policy to backstop the conservative immigration agendas of nineteen red states is wrong. But it is perverse when the Court creates single-use rules that ignore precedent and logic. It would be funny if it weren’t so tragic.

          The Court’s reactionary majority does not care about the law. It is a policy-making body in service of the far-right’s religious and social agendas. It will continue to be so until we sufficiently enlarge the Court to loosen the death grip of the reactionary majority on the legislative prerogatives of Congress and the individual liberties guaranteed by the Constitution.

Resources to help digest the January 6th final report.

          There is no substitute for reading the January 6th report (eventually), but at 850 pages, that is a heavy (or impossible) task for many. One way to access the material is to look at the original transcripts of key witnesses. The news site Just Security has created a comprehensive and accessible “clearinghouse” that includes all of the witness transcripts, hearing presentations, timelines, polls, digital forensics, and additional research reports relating to the January 6th investigation. See Just Security, January 6 Clearinghouse.

          Just Security also includes a terrific analysis of the January 6th Committee’s final report—including some mild criticism of areas where the Committee could have been more aggressive in making recommendations. See Ryan Goodman and Justin Hendrix in Just Security, Major Highlights of the January 6 Report.

          Finally, for those of you with digital subscriptions to the NYTimes, I highly recommend this “behind the scenes” look at the January 6th Committee: NYTimes,  Inside the Jan. 6 Committee: Power Struggles and Made-for-TV Moments. The article is a magnificent piece of journalism. The article details the hard work, disagreements, ego clashes, and good luck that went into creating nearly flawless public hearings. In the end, the Committee members achieved consensus on nearly every decision—although key staff members quit along the way. And the article makes clear that two women shaped the Committee’s work from start to finish: Nancy Pelosi and Liz Cheney. Read it if you can!

A follow-up to my commentary on Greg Abbott’s anti-Nativity narrative.

          In yesterday’s newsletter, I asked:

The question for Christians of good faith is this: What will you do about it [Abbot’s cruel abandonment of migrants in DC]? The silence from Christian leaders in the face of Abbott’s anti-Christlike behavior speaks volumes. My point is not to condemn the silence but to urge Christians to apply the true message of Christianity to those in need.

          A reader posted the following response in the Comments section:

While many mainline churches are quiet about such atrocities, there is one organization working to specifically call out Christian nationalism. I think it might be helpful for your readers to know about Faithful America. I have contacted them, requesting that they tackle this recent egregious stunt.

From their website:

Faithful America was founded in 2004. We are the largest online community of Christians putting faith into action for social justice. Our members -- Catholic, Protestant, and more -- are sick of sitting by quietly while Jesus' message of good news is hijacked by the religious right to serve a hateful political agenda. We're organizing the faithful to challenge Christian nationalism and white supremacy and to renew the church's prophetic role in building a more free and just society.

          I am not familiar with Faithful America, but other readers have commented favorably on the organization in the past. If you are a Christian who is sickened by the right wing’s effort to transform Christianity into Christian nationalism, you may want to check out Faithful America. And now, I will step back from the religious side of this debate and remain focused on the political dimensions of the GOP’s efforts to resurrect white supremacy and white nationalism as the guiding principles of their party.

Update on Kari Lake litigation in Arizona.

          Although the judge presiding over Kari Lake’s last remaining case in Arizona declined to award sanctions, he did award Katie Hobb’s more than $33,000 in costs—to be paid by Kari Lake. See Kari Lake election lawsuit: Sanctions denied, but more than $33K awarded to Katie Hobbs.

          And in response to my request to show some love to Marc Elias at Democracy Docket, it appears that more than 2,300 of you visited his website to sign up for the Democracy Docket newsletter! You can still sign up for the Democracy Docket newsletter for free, here: Join the Fight To Protect Voting Rights - Democracy Docket.

Concluding Thoughts.

           Apologies to anyone who was not amused by my snarky opening about the Supreme Court, but at some point, we all need a break from the outrage-inducing tactics of the Court’s reactionary majority. For me, resorting to mockery was a needed mental health break. But as I wrote at the end of the article on the Supreme Court, it is no laughing matter when the majority treats precedent as an annoyance to be swatted away. We deserve better from the Court. Indeed, we deserve a better Court.

          There was a notable dip in the news cycle on Tuesday, so I am cutting the newsletter short this evening. I could have included an article detailing the political death spiral of George Santos, but it is obvious where that story is heading: resignation and indictment (not necessarily in that order). The man lied about his lies in his confessional interview with the NYPost. There is no recovering from that. Eager journalists will find the truth. It is only a matter of time.

          The House Ways & Means Committee will release six years of Trump’s taxes on Friday, December 30th. Unless his tax returns include something truly unexpected—like loans from Vladimir Putin or a joint venture with Mohammed bin Salman—I won’t be commenting on the returns until January 3, 2023.

          I hope everyone can take advantage of a slower news cycle in the coming days to relax and recharge for another eventful year.

          Talk to you tomorrow!