Sovereigns, Exceptions, and “Shadow Dockets”:
Law, Religion, and States of Emergency
M. Christian Green
“Sovereign is he who decides on the exception.”
Carl Schmitt, Political Theology (1921)
“By nonetheless granting relief, the Court goes astray. . . . That renders the Court’s emergency docket not for emergencies at all.”
Justice Elena Kagan, Louisiana v. American Rivers (2022)
About a decade ago, the name of a particular twentieth-century political theorist began to be seen with increasing regularity in the field of religious studies, particularly in the subfield of political theology. That theorist was Carl Schmitt. Schmitt was a German jurist and political theorist, who also wrote about religion and theology. He was also a prominent member of the Nazi Party. In political terms, Schmitt was a conservative theorist, critical of liberalism, constitutionalism, democracy, and cosmopolitanism. Schmitt’s work has been widely read and commented upon in interdisciplinary political and philosophical circles by influential theorists, such as Giorgio Agamben, Hannah Arendt, Walter Benjamin, Jacques Derrida, Jürgen Habermas, and Slavoj Žižek, many of whom have also been widely read in law and religion in recent years.
It is tempting to simply write Schmitt off as one of Hitler’s lawyers, someone who came to be called the “crown jurist” of the Third Reich. With other theorists of Nazi association, Schmitt’s views raise ethical challenges in their appropriation and use, particularly because his theories were considered to be brilliant and were widely influential in his later life and after his death, particularly in European intellectual circles. Formally excommunicated from the Catholic Church and its sacraments after marrying a second wife without securing an annulment of his first marriage, Schmitt was the subject of an intellectual renaissance among religious and secular thinkers of a range of religious views in his post-war life, even such estimable Catholics jurists as Ernst-Wolfgang Böckenförde. Condemning Schmitt for his anti-Semitism and Nazi past might seem an exercise in retrospective projection, but he was condemned by his contemporaries and never disavowed the anti-Semitism. Recent biographer Reinhard Mehring characterizes Schmitt’s life and work as “ambiguous and mysterious.”
A particular concept for which Schmitt is known intersects with a set of concerns that has recently leapt to the foreground of American and international jurisprudence. This concept is the “state of exception” (or “state of emergency”) in which the use of emergency powers by sovereign authorities becomes legitimate. Schmitt introduced the concept of the “state of exception” in the book Dictatorship, published in 1921 at the dawn of the Third Reich. Therein, he wrote of what he saw as the weakness of the Weimar Constitution and the necessity of a strong ruler. The world then experienced the calamitous effects of the ruler who emerged not long thereafter: Adolf Hitler. In a subsequent book, Political Theology, Schmitt defined “political sovereignty” as the ability—really, the necessity—of being able to ignore or set aside the law in contexts of unforeseen emergency. As the epigram to this essay states, by Schmitt’s definition, “Sovereign is he who decides on the exception,” referring both to the authority to decide when an emergency occurs and unlimited discretion regarding what to do about it.
In the field of law and religion, it is worth speculating whether there are connections–or coincidences–between Carl Schmitt’s concept of the sovereign defined by and defining emergency and exception and the renowned sociologist of religion Max Weber’s concept of charismatic authority. In Weberian terms, charismatic authority is a type of religious and personal authority that is different from the rational and legal authority that should govern modern states. But charismatic authority is also the kind of authority that can seem particularly salient—even salvific—in the context of an emergency, especially one that leads to the suspension of normally existing political, social, and legal relations. To the extent that emergencies may occasion exception from or suspension of law, they can be seen as representing something of an inbreaking of a charismatic power that is nearly godlike or divine. For those of us who have been studying recent uses of emergency powers in connection with the COVID-pandemic and other recent political disasters, this is what makes the emergency a law and religion problem.
Today’s debates about Carl Schmitt take place against a backdrop of contemporary emergencies that have troubled the law in recent years. The COVID pandemic and the existential threat of climate change are two of the most serious. In the United States, we have seen debates over the use of emergency powers in at least three contexts. First, there have been long-standing debates over the rising use of presidential executive orders in recent presidential administrations. More and more, executive orders have emerged as a tool by which presidents can bypass Congress and even the courts to enact controversial or stalled policies. Second, there have been disputes at the state level between state legislative and executive branches, pitting governors against legislatures, especially in states where these are controlled by different political parties. Third, the United States Supreme Court has increasingly used the emergency docket, which has recently come to be known as the “shadow docket,” to take cases not just on procedural issues where time is of the essence, but to issue judgments on the merits of cases, sometimes in the dead of night and cover of darkness.
Louisiana: An Exceptional State for Emergencies and Charismatic Contestation
The state of Louisiana, where I live, has seen multiple emergencies and emergency declarations in recent years. Louisiana’s February 2020 Mardi Gras carnival festivities were one of the first COVID “superspreader” incidents in the United States. Louisiana, like many southern states in the U.S. was hit by COVID especially hard. Louisiana’s susceptibility to hurricanes, floods, and other disasters is longstanding, and worsening due to climate change. The disease and disaster scenarios created by COVID – and the three contemporaneous hurricanes, Laura, Delta, and Ida – have posed medical, economic, social, and other challenges.
In the 2022 Louisiana legislative session, no fewer than 37 bills and resolutions were introduced to address various kinds of emergencies. There were House bills and resolutions related to emergency health preparedness and hospital coordination, emergency resilience requirements for housing developments, emergency preparedness of nursing homes and juvenile detention facilities, emergency suspension of legal deadlines and criminal penalties for emergency order violations, emergency fuel reserves and security of state buildings in emergencies, emergency-use authorization of vaccines, emergency contraception for rape victims, and, of course, recognition of Emergency Medical Services Week. There were also proposed Senate bills and resolutions related to state emergency response networks, protections against criminal punishment or liability for emergency medical professionals, remote operations of the legislature during an emergency, insurance of and unfair trade practices against seniors or special needs individuals in emergencies. Especially noteworthy for those concerned with protecting democracy, there were bills for emergency election procedures.
Many of these bills and resolutions reflect a steep learning curve about how many things can go wrong in an emergency in ways that might require prevention or mitigation. Law and legislation are often backward looking and retrospective in this way. But there were also prospective and forward-looking proposals to anticipate and plan for future emergencies—basically, to routinize and render less exceptional the management of emergencies. Most of these bills and resolutions were pragmatic in nature, responding to clearly defined emergency circumstances in specific sectors.
There were, however, several bills that aimed more broadly at the question of who – between the legislative and executive branches of state government—holds power to define and declare emergencies. These were among the most fraught bills of the session and were rife with often conflicts between personalities and powers, with legislators taking to the floor – and in one notable case to a convoy of vehicles in a drive-by protest outside the governor’s mansion – to voice their opposition to gubernatorial overreach.
Among the controversial pieces of legislation in Louisiana was a Senate bill to provide for remote operations of the legislature during an emergency declared by the governor. It was vetoed by the governor when its companion legislation creating a proposed constitutional amendment to actually enact such a system failed to get the necessary two-thirds vote. On the other hand, a House bill to permit a simple majority of the “surviving members” of either legislative house to terminate a gubernatorial public health emergency or any provision thereof passed the legislature at the very end of session. (There was also a noteworthy exception in the latter bill for elections, which were to be conducted under the existing law.)
It is interesting that, with respect to election law, in the spring of 2020 Louisiana legislators and elections officials had resisted advocates’ calls for emergency election protections in the COVID pandemic emergency, including social distancing, personal protective equipment, additional polling locations, and expanded early voting, that were proposed to enhance election safety. These officials declared repeatedly that they had no “crystal ball” to anticipate or prepare for such emergencies. (This reticence in ways seemed analogous to religious objections to the concept of insurance, as reflecting a hubristic god-like presumption of knowledge about the future or a lack of faith in divine providence.) Yet, in throwing caution to the winds on COVID, these officials risked increasing the likelihood of a disaster for which Louisiana would be unprepared. Only litigation and advocacy ended up saving the day, with a federal court order to implement COVID election emergency protections.
This brinksmanship around emergency preparation highlights the need to routinize preparation for emergencies in the way that a Weberian rational-legal system would do, placing the emergency powers of the sovereign to declare and determine emergencies within appropriate legal boundaries. To leave emergency preparation to fate invites the possibility of a charismatic leader or ideologically driven legislature to step in and take control in an “I alone can fix it” kind of way. In fact, most of the Louisiana legislative emergency bills, albeit retrospectively, did aim at a routinization and regulation of response to future emergencies. But their promulgation also produced pronounced conflicts over separation of powers that generated responses of a charismatic contestation from both government and religious leaders. What was objectionable was not so much the charismatic displays, which do at least serve the purpose of drawing the public’s attention to important politics, but the potential threat to legal boundaries between government branches and powers, sometimes referred to as the “guardrails of democracy.”
The reason we can describe these Louisiana legislative machinations around emergency powers as “charismatic” in nature has certainly to do with their attempts to manipulate the law and public perception of law. But it also has to do with the way in which they drew upon sources of power and prestige from both legal and extra-legal sources of authority in their attempt to wrest emergency powers away from the executive branch of government where it had hitherto resided. The legislature and a range of other characters of the sort who have historically frequented Louisiana’s body politic, beginning with the COVID emergency mandates and later extending into others, specifically characterized the Governor of Louisiana as a “tyrant.” Chief among these, drawing on the power of religion and faith, was Pastor Tony Spell, who filed a religious freedom lawsuit against the governor for restricting religious activities during the pandemic. Representative Danny McCormick, a legislator whose flare for the dramatic included taking a chainsaw to face masks, who led the vehicular COVID mandate protest parade outside the Governor’s Mansion. There, he addressed a U.S. flag-waving crowd from the back of a pickup truck (“pastalaya” lunch provided to the crowd by Pastor Spell’s church), with one participant yelling from the crowd that the governor in addition to being a “tyrant” was a “traitor” against the Constitution. Louisiana Attorney General Jeff Landry at one point took to the microphone at a gubernatorial press conference to draw on his nonexistent medical expertise to recommend discredited hydroxycholoroquine treatments as a pandemic cure. The state’s top law enforcement officer thus took on the trappings of a medically savvy healing shaman, as the governor looked on from the side with what seemed to be thinly veiled disgust. Legislative deliberations around emergency election protections brought the Louisiana Secretary of State Kyle Ardoin to tears at one point, possibly generating some sympathy, given that the legislature was proposing to assume more control over his powers along with the governor’s over elections, in a possible preview of the rise of the independent state legislature theory in Louisiana. May it not come to pass!
Pastors in handcuffs, flag-waving pickup protests, lawyers as shamans, electoral tears—all of these culminated in highly visual and charismatic plays for power drawing on legal and extra-legal authority. And all of them aimed at reining in what were seen as illegitimate and excessive powers exercised by a putatively tyrannical governor. Louisiana likes to think of itself as an exceptional state within an exceptional nation. But such notions of exceptionalism, alongside manipulations of symbols, fears, and emotions, produce a highly charismatic politics that can quickly become routinized in service of power rather than democracy.
“Shadow Docket” Shenanigans and the Legitimacy of the Court
At the federal level, the contest between the routine and the charismatic when it comes to emergencies has nowhere been more visible—or more high stakes—than the U.S. Supreme Court’s “shadow docket.” The emergency docket (as it was more properly known before the term “shadow docket” was coined in 2015), was previously used mostly in cases of imminent-death row institutions. It recently gained broader public attention when the Court used it to issue emergency injunctions against COVID mandates. Cases on the “shadow docket” are expedited by the Court, rather than going through the Court’s usual review process. Cases have normally been heard on the emergency docket only in cases where the law was “indisputably clear” in “extraordinary circumstances” involving the “weightiest considerations,” and where those petitioning the Court for relief are likely to experience “irreparable harm or injury,” absent an emergency stay of what would otherwise be the law’s swift application. In such cases, the Court may issue a stay pending appeal in cases where the appeals process has already commenced in the relevant appellate court. In very rare cases, the Court grants a writ of certiorari before judgment, wresting the decision from the lower court of appeals even before they have had a chance to rule on the merits.
Interestingly, two recent shadow docket cases have involved the state of Louisiana. In Louisiana v. American Rivers, a case involving an Environmental Protection Agency rule that President Trump had suspended by executive order to limit the time frame within which state or tribal officials could deny or waive the certification of federal licenses for projects that might cause water pollution within their boundaries. The American Rivers decision drew attention for its substantive holding. It also drew attention for Justice Kagan’s denunciation of its “shadow docket” disposition – a dissent that Chief Justice Roberts joined. At the end of her dissent on the stay, Justice Kagan stated:
By nonetheless granting relief, the Court goes astray. It provides a stay pending appeal, and thus signals its view of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required. That renders the Court’s emergency docket not for emergencies at all. The docket becomes only another place for merits determinations—except made without full briefing and argument. I respectfully dissent.
In a term in which the Court, by many accounts, has run roughshod over decades of precedent across wide swaths of the law, the agreement of Chief Justice Roberts with Justice Kagan, particularly in light of Justice Roberts’s reputation as an institutionalist defender of the Court and its procedures, was seen as especially significant.
Not long after the American Rivers case, Justice Alito granted an application for stay treated as a writ of certiorari before judgment in the electoral map redistricting case of Ardoin v. Robinson. That decision stayed the application of congressional maps creating a second majority-minority district among Louisiana’s six districts to provide an opportunity for better representation among the one third of Louisiana’s voters who are of African American descent. The Supreme Court’s “shadow docket” grant of certiorari without judgment took the Louisiana district court decision out of the hands of the Fifth Circuit Court of Appeals, at least on the merits, ultimately consolidating the case with the related Alabama case of Merrill v. Milligan, which the Supreme Court heard on October 4, 2022. The immediate result was that Louisiana was forced to vote in the 2022 midterm elections under what had hitherto been determined to be unconstitutional and VRA non-compliant maps. Louisiana now waits, with Alabama, for a final judgment on its redistricting process.
In the case of the Supreme Court “shadow docket,” there are questions of power in play. But whereas legislative disputes in Louisiana revolved around reining in the power of particular sovereigns (or would-be sovereigns) in the form of a state governor and other elected officials, the Supreme Court’s power is broader and more fluid with respect to the boundaries between the legislative and executive branches, not to mention its own interventions within the judicial branch. With such moves, sometimes late-night and last-minute, the Court’s justices risk arrogating too much power to themselves.
Interrogating Emergency Powers
These wranglings over emergency powers and emergency dockets at various levels of government merit our scrutiny. In much the same way, Carl Schmitt, as a theorist of “states of exception” is also worth interrogating along a number of lines. The possible Weberian roots of his notion of “exception” in divine and godlike notions of charisma make his views a ripe topic for analysis in the field of law and religion. The historical connections of exceptional jurisprudence and emergency powers to such horrific phenomena as the rise of Hitler’s Third Reich and the installation of South Africa’s apartheid regime, however, should give great and grave pause to anyone seeking to adopt or adapt Schmitt’s work for today’s world.
There are emergencies that are known or foreseeable and which are capable of anticipation, prevention, or mitigation, and these are worthy foci of legislative intervention when emergencies become routine and exceptions become the norm. This is the field of emergency management. Under this rationale, reasonable emergency laws aimed at reasonable emergency ends make sense. Reasonable precautions to prepare for hurricanes, mitigate pandemics, and plan for secure elections seem eminently reasonable, regardless of which branch of government takes the lead. After all, the branches of government should ideally work together in these circumstances. But governance by emergency can also be a double-edged sword, inappropriately altering balances of power in ways that can outlast the emergency.
But much as hard cases make bad law, exceptions and emergencies can lead to injustice. Trouble tends to emerge when emergencies are wielded as charismatic cudgels to reconfigure power relations and to suspend the normal procedures of democratic jurisprudence. The demise of the Weimar Republic under Schmitt’s legal direction and rise of South African apartheid are examples that show how states of exception have a problematic tendency of being used to target social groups, particularly vulnerable minorities. Where emergencies lead to emergency powers, they can also end up suspending norms that are intended to function as guardrails. Emergencies are best managed in the sunlight of democratic humility, rather than through shadowy deus ex machinas of exception. ♦
M. Christian Green is a senior editor and senior researcher at the Center for the Study of Law and Religion. Her areas of scholarly expertise are law, religion, human rights, and global ethics.
Green, M. Christian. “Sovereigns, Exceptions, and ‘Shadow Dockets’: Law, Religion, and States of Emergency.” Canopy Forum, December 14, 2022. https://canopyforum.org/2022/12/14/sovereigns-exceptions-and-shadow-dockets-law-religion-and-states-of-emergency/