On Wednesday, the U.S. Supreme Court issued an "emergency" ruling in Louisiana v. American Rivers. The decision temporarily reverses a lower court's order blocking a Trump-era water regulation that makes it easier for states to issue permits to dump pollutants into navigable rivers — at least until the Ninth Circuit decides whether to take up an appeal of that order.
The order marks yet another controversial use by the Republican-appointed justices of what legal experts call the "shadow docket" — using the emergency relief process to summarily overrule lower courts or laws without any public argument or justification for doing so. Normally, the Court will hear oral arguments, deliberate, and issue an opinion on their reasoning, but ever since Republicans took a six-justice majority, the Court has increasingly skipped all of that on more substantive issues.
One unusual thing happened this time, however: Chief Justice John Roberts, a typical member of the conservative side of the bench, joined the dissent from liberal Justice Elena Kagan condemning the court's alleged abuse of the shadow docket — a potential sign he, too, is growing annoyed by his colleagues' use of emergency orders.
By 5-4 vote (with Chief Justice Roberts joining the progressives in dissent), #SCOTUS issues shadow docket stay of district court decision that had vacated a Clean Water Act certification rule. Per Kagan, J.: "That renders the Court’s emergency docket not for emergencies at all." pic.twitter.com/yX6qvSrzLc
— Steve Vladeck (@steve_vladeck) April 6, 2022
In practical terms, this reinstates a Trump administration rule re: when and how states can provide certifications that allow for discharges of pollutants into navigable waters.
— Steve Vladeck (@steve_vladeck) April 6, 2022
