Perhaps the most famous example of the court’s responding to public criticism came in 1937. After the 1936 election, in which President Franklin Roosevelt ran as much against the court — which was blocking economic measures meant to respond to the dire conditions of the Depression — as against Gov. Alf Landon of Kansas, Justice Owen Roberts made “the switch in time that saved nine,” a shift that historians debate was either because of Roosevelt’s proposal to add six seats to the court or, more generally, in response to the broader atmospherics of the president’s re-election. Either way, the court’s shift was precipitated by substantial public backlash against its recent behavior, and it opened the door to an era of greater judicial deference to economic regulation and greater judicial protection of civil rights.
To similar effect (albeit in a different direction), the Supreme Court of the mid-1970s responded to public criticism on the issue of the death penalty. When the justices effectively imposed a nationwide moratorium on capital punishment in 1972, the political backlash was extraordinary — at both the state and federal levels. In exchange for adopting a series of procedures designed to make imposition of the death penalty less arbitrary (at least in appearance), dozens of states and Congress aggressively pushed the court to reauthorize capital punishment. On July 2, 1976, the court acquiesced.
In the past 18 months, we’ve seen a similar — if subtler — shift in the court’s behavior that again closely correlates with public criticism and pushback. In this case, it has been related to how the justices issue unsigned and (usually) unexplained orders concerning applications for emergency relief, on what Will Baude, a University of Chicago law professor, first called “the shadow docket.”
Starting in 2017, there was a great shift in how the conservative majority used unsigned, unexplained orders, especially in the context of applications for emergency relief (to freeze or unfreeze lower-court rulings while a case works its way through the courts). Far more than ever before, the justices started using these orders in ways that had nationwide implications — allowing, for example, President Donald Trump to carry out a series of immigration policies that lower courts had struck down (and no court would ever uphold) and blocking a series of Covid-mitigation measures in blue states on novel religious liberty grounds.
By contrast, the court showed nowhere near the same appetite to intervene to protect President Biden’s policies or to block controversial laws in red states — like Texas’ six-week abortion ban, which the court, in September 2021, allowed to go into effect, nearly 10 months before it overruled Roe v. Wade. As Justice Elena Kagan charged in her short dissent on the court’s refusal to intervene in the Texas case, the conservative majority’s behavior on the shadow docket had become increasingly “unreasoned, inconsistent and impossible to defend.”