SHAKER HEIGHTS, Ohio — Our Constitution only works when those who serve in all three branches of government act openly and in good faith for the public good. This applies as much to the Supreme Court of the United States as it does to Congress and the executive branch. And yet, the Supreme Court of the United States in recent years has repeatedly violated this principle by its inappropriate decision use of the so-called “virtual folder” adjudicating cases involving critical issues such as the death penalty, access to abortion, elections, travel bans, military service for transgender people and the environment.
The Supreme Court generally makes its decisions in two ways: either by following its usual rules or by applying a rule governing emergency situations. It is the increasing use of emergency procedures that has led to these decisions being referred to as a “ghost file”; in other words, cases decided outside the bright light of agreed standards.
Emergency procedures, logically enough, can only legitimately be used in an emergency. While each of us may have our own definition of urgency, Supreme Court rulings over the decades have established that urgency only exists when a party who has lost in a lower court proves that they will suffer irreparable harm – harm that cannot be repaired later – unless the Supreme Court intervenes immediately to circumvent normal procedures.
Compare this with the long-established procedure for deciding cases that affect the nation, and it is evident what is lost by the use of the shadow case.
As a general rule, any party attempting to overturn a trial court decision must await the decision of all lower courts and then ask the Supreme Court to reconsider. If the U.S. Supreme Court accepts the case, it goes through an open process that includes a briefing, a chance for other interested groups to join in the discussion and oral argument, and time for the justices deliberate on issues both individually before arguments and collectively after disputes. The pleading, a particularly important part, allows the parties to engage in a direct discussion with the judges on the merits of the case, the only time when such a dialogue is authorized.
Having been involved in oral argument, both as a circuit court attorney and as a trial judge adjudicating, I can attest to the value of these formal conversations.
All of that gets pushed aside when the U.S. Supreme Court rules on a ghost case. A glance the most recent use of this device and the harm it causes to the system shows the problem. A trial court, after notice and a hearing, struck down a US Environmental Protection Agency rule. The losing parties appealed to a circuit court. While the case was pending in this court, the losing parties bypassed the circuit court and asked the Supreme Court to use its emergency powers to suspend (i.e. stop) the decision of the trial court until the circuit court and possibly the Supreme Court have decided the case. . The High Court did so in a one-paragraph opinion which sets out neither the facts nor the law nor its legal reasoning.
Regular procedures are sometimes criticized for taking too long, and sometimes this criticism is justified. But the desire to win faster does not mean irreparable harm. When the United States Supreme Court steps away from its role as an impartial arbiter of last resort and inserts itself into lower court proceedings intended to clarify issues before the case reaches the Supreme Court, it distorts the process and the legal system.
As a retired federal trial judge, it pains me to make these comments about an institution created by the Constitution and for which I have the greatest respect. But respect for an institution does not mean losing the right to demand that those who have the privilege of being appointed to the Supreme Court act in the public interest.
The current use of the Shadow Record by the United States Supreme Court is disrespectful to lower courts, attorneys and their clients, the public, and the rule of law. They should stop using the emergency roll as an excuse to prematurely grab a case to overturn a decision they don’t like.
Pat E. Morgenstern-Clarren served as a United States Bankruptcy Judge for the Northern District of Ohio in Cleveland from 1995 until his retirement in 2017, including two terms as Chief Judge and one on the bankruptcy appeal panel of the 6th US Circuit Court of Appeals.
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