LATE THURSDAY NIGHT IN A 6-3 DECISION, the Supreme Court (SCOTUS) struck down the Centers for Disease Control and Prevention (CDC) moratorium on evictions, ruling the public health agency exceeded its authority. The court’s decision to overturn the federal eviction moratorium, with as many as 6.5 mil households on the verge of eviction, occurred during what is known as the court’s “shadow docket.”
For those unfamiliar with this area of SCOTUS activities and why this decision is problematic, the ACLU’s David Cole wrote about the dangers of the shadow docket in a Washington Post opinion piece last August:
[I]n a much less visible area of its work, commonly known as the “shadow docket,” the court has increasingly split along party lines. Every year, the court considers emergency motions for stays of lower-court orders. It decides these cases without oral argument, often in a matter of days or even hours. In such cases, it typically offers no explanation for its reasoning, even when dissenting justices voice serious objections, and even when the court is effectively overturning the unanimous decisions of lower courts.
Unlike most shadow docket cases, where the court issues brief orders, in this instance, it issued an eight-page majority opinion, which, as Adam Liptak and Glen Thrush of the New York Times points out, is unusual, especially in a ruling on an emergency relief application.
Putting aside for a moment the fact that the SCOTUS ruling clears the way for mass evictions during a deadly pandemic, as litigator Max Kennerly points out in a thread on Twitter, the decision contains several inaccuracies. For example, the first page of the ruling, written by the majority without attribution, states: “The case has been thoroughly briefed before us — twice.”
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