Ian Millhiser writes:

The Social Security Administration v. AFSCME case arises on the Court’s “shadow docket,” a mix of emergency motions and other matters that the Court decides on an unusually tight schedule, without full briefing or oral argument. Prior to the first Trump administration, the Court rarely granted requests for shadow docket relief — indeed, lawyers were so discouraged from seeking shadow docket decisions that both the Bush and Obama administrations only requested it about once every other year.

That changed once President Donald Trump took office. Now, Trump’s lawyers routinely approach the justices after a lower court issues a decision constraining its actions, and the justices frequently grant Trump’s administration the relief it seeks — often over the dissent of the Court’s Democratic minority.

But there are supposed to be rules governing when the Supreme Court may allow a litigant to bypass the normal appeals process and seek an immediate decision blocking a lower court’s order. Among other things, as Jackson writes in her dissent, the government is supposed to show “that it will actually suffer concrete or irreparable harm from having to comply with the District Court’s order” before it can obtain a Supreme Court decision blocking that order.

Jackson is becoming increasingly vocal about her belief that the Court should return to its prior shadow docket policy. She argues, in both her AFSCME dissent and in a similar dissent she handed down a week earlier, that her Republican colleagues have abandoned this “irreparable harm” requirement. Moreover, as she lays out in her previous dissenting opinion in Noem v. Doe, the Court took a much narrower view of its authority under the shadow docket when the Biden administration sought relief.

Moreover, the evidence laid out in Jackson’s opinions suggests that her Court is applying one set of shadow docket rules to Democratic administrations and another, more favorable set of rules, to Republicans. [Continue reading…]