It’s a great question, and it means getting into Alito’s head.
This time, Barrett and Kavanaugh vote to deny relief. You end up with Thomas, Alito, and Gorsuch in dissent. Barrett writes this cryptic opinion that Kavanaugh joins, where she says, “Just because you’ve met the criteria for emergency relief doesn’t mean that we have to grant it. We should use our discretion.” She doesn’t say how that discretion is going to be informed or bound. She just says it’s discretionary.
I think the question is this: What’s the lesson there? Is the lesson that public response actually had an impact? If so, I think that’s a pretty big deal. So many folks are fatalistic today about the idea that the Court is subject to any public pressure. That said, I’m not in a hurry to give the Court a participation trophy for what should have been a no-brainer.
In your book, you mention that Congress could do something about the abuse of the shadow docket. It’s hard to be optimistic about that.
Source: Law Daily Report (lawdailyreport.net)
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