"As the Supreme Court begins a new term this month, much attention is being paid to the many recent shadow-docket rulings in which the justices have issued summary orders reversing trial courts. These typically involve little or no explanation. They also have a distinctly partisan cast, given the administration's woeful record before the lower courts and relative success at the Supreme Court."
"Whatever one thinks about the case outcomes, this is a stark departure from the fundamental legal norms that give jurors and trial judges the primary role in fact-finding. Appellate judges, including even Supreme Court justices, have enormous power over law, but they are not supposed to be fact finders in chief -nor should they be resting decisions on "shadow facts" not subject to the usual rules of legal practice."
Many recent Supreme Court shadow-docket rulings have issued summary orders reversing trial courts with little or no explanation. Those orders often have a partisan cast tied to the administration's poor record before lower courts and relative success at the Supreme Court. Numerous early-stage orders have reversed or supplanted factual findings made by jurors and trial judges. Appellate judges, including Supreme Court justices, hold large legal authority but are not intended to serve as primary fact finders or to rely on untested "shadow facts." Standard legal customs favor trial-based fact-finding, expert testimony, adversarial testing, jury determinations, and appellate deference. Overturning fact-bound decisions without full briefing or argument bypasses those norms and raises significant stakes.
Read at Slate Magazine
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