Law – Infrapolitical Reflections

In recent years there has been a steady but increasing practice in the American legal system that has passed unnoticed outside the corridors of law professors and practitioners of litigation, including the federal state that has summoned to its practical use: the emergency relief, or ‘shadow docket’ that puts the burden on the Supreme Court to decide on concrete questions without a formal hearing, fact finding, or without proper argumentative opinions of visible authorship (the judge who pens the opinion tends to deface his authorship). Since the outbreak of the Covid-19 pandemic, the Supreme Court of the United States has increasingly expanded its so-called ‘shadow-docket’ in parallel with the merits docket to such an extent that, as some legal theorists have noted, the blurring of the borders between the first and the second have become so tenuous and intertwined that it would seem that the merits docket depends on the prior selection mustered in the shadow docket. As constitutional scholar Stephen Vladeck has registered in his The Shadow Docket (2023), a practice that historically was strictly tied to emergency relief for capital punishment executions, it has now become a normal vehicle to decide on the emergency contingencies, while at the same time exercise discretionary judgement regarding the merits, or actual dispute, of case pending future review that might never be considered at all [1].

It must be said that the selective practice of cases by the court through the notion of “certiorari” on merits cases was in itself a decision on the exclusivity of relief based on the criteria of major legal questions of interest to the court. But precisely the differentiation between certiorari and the shadow dockets grants sharp focus on their differences. On the one hand, the shadow docket fails to decide on “legal questions” – in fact, it avoids tailoring the boundaries between the other branches of government and itself, as some have noted – and, by the same token, its non-decision produces a precedent lacuna that further entrenches the ascension of the shadow docket, inviting an evermore practice of emergency relief to increase chances of ‘cert’. Contrary to expert opinion, this is a juridical situation that does not create the conditions for the normalization of the “state of exception”, since there is really no authoritative decision to stabilize a concrete order, which was the purpose of Carl Schmitt’s well known formulation about sovereign arcana in political theology. In a certain sense, we have already crossed this threshold. Rather, the shadow-docket as a juridical practice in the American legal order is an institutional symptom in which decision has been evacuated or rendered inoperative, so that emergent social needs enforce any specific arrangements and political vectors through an enacted order.

Furthermore, the shadow-docket as a regularized legal practice at the highest court confirms the historical shift within American legal system from the empire of the courts to administrative departmentalized commands, which ultimately means that the formal tendency towards “delegation” should not be solely circumscribed in allocated powers of the different branches’ oversight and control, but rather is a product of a holistic tendency towards the emergence of a new form of social indeterminacy in which authority resides in the shadows. As Supreme Court Jackson writes in the “Per Curiam” dissent in Trump v. JGG (April 7, 2025): “With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: we are just as wrong now has we have been in the past, with similar devastating consequences”. It is an astonishing statement from the Judge not only because of what it states, but also what it silences; mainly, that by leaving no trace at all of their argumentative reasons there is no precedent, and for that matter no process and thus no case. And what is a rule of law devoid of a case and precedent? The historical schism with respect to the tradition of Common Law that gives birth to its formal constrains should be utterly obvious. Ultimately, this evidences the uttermost decline of the legal positivist horizon of the modern law rooted in legitimate authority (authoritas, non veritas, facit legem), in which arbitrary decisionism, legal motorization, and appeals to external values align themselves in order to render absolute determinacy between social life and legal execution without any preclusion in the form of a social trial without end. In this sense, it would be foolish to assume that the crisis of authority with the dissolution of auctoritas in the social spheres compartmentalized in functions of the “political community”; on the contrary, in the shadow docket scenario, authority “becomes more and more abstract, more and more inhuman and inexorable; more and more demanding” [2]. The orientation of executive commands is met with proportional digression of adjudicated moral pondering, and each time the force of legalization is vigorously expanded.

The decline of the juridical decision, one would be tempted to say, paves the way for the infinite demands at the expense of the arbitrary values formation of social gigantism. In the opinion about college admissions and racial discrimination of the 2023 merits docket cycle (Students for Fair Admissions v. Harvard College), Justice Roberts wrote that “What cannot be done directly cannot be done indirectly. The constitution deals with substance, not shadows”. An ironic statement, indeed, given the preeminence of the shadow-docket in the adjudicative practice of the Supreme Court itself. While the administration of justice becomes a practice in the shadows, one cannot but be reminded of Plato’s protofigure of the Guardian of Constitution, the Nocturnal Council, as elaborated in the last pages of The Laws. And for Plato “if a state lacks such constituent [a Nocturnal Council], no one will be surprise to see it staggering from one irrational and senseless expedient to another in its affairs…that body must posses virtue in all of its completeness which amens that it will not take erratic aim at one target after another but keep its eye on single target and shoot all its arrow at that” [3]. On the tail opposite end of the platonic Nocturnal Council, the United States’ highest court’s gliding abdication seems to erratically aim at repeated targets that emerge blasting flickering lights from within the ever present shadow docket – indeed, a momentary luminosity, full of ‘technical terms’ and deferrals, that aim to showcase that the rule of law still endures in the House of Justice.

Notes

1. Stephen Vladeck. The Shadow Docket: How the Supreme Court uses stealth rulings to amass power and undermine the republic (Basic Books, 2023), 19.

2. Theodor W. Adorno. “On the Problem of the Family” (1955), Endnotes, 2022: https://endnotes.org.uk/posts/theodor-adorno-on-the-problem-of-the-family-1955

3. Plato. The Laws (Penguin Books, 1975), 520.

There is a moment in Hölderlin’s late hymn “Friedensfeier” (1801) where communication is strictly defined as becoming a song. The verses in question are about midway into the poem, and we read read the following:

“Viel hat von Morgen an,

Seit ein Gespräch wir sind und hören voneinander,

Erfahren der Mensch; bald sind wir aber Gesang.”

“Mucho ha, desde la mañana,

desde que diálogo somos y oímos unos de otros,

aprendido el ser humano; pronto empero seremos canto”.

This is the Spanish rendition by the Venezuelan poet and translator Verónica Jaffé [1]. These lines stand for Hölderlin’s unique effort during the years 1800-1804 to substantially qualify what he had confessed to his mother as his true task: to live a serene or quiet life. I think this Spanish translation is much closer to the original German. Jaffé hangs on the present perfect with conviction: “Mucho ha…”, as if knowledge remained at a distance in the metric while becoming a temporal duration, a form of experience. This is the poetic “strict mediacy” for Hölderlin that can only be cultivated [2]. And it is only through the duration of experience that one will become a song (“seremos canto”). We are not yet there, hence the apostrophe. In the late period, duration meant dealing directly with Pindar. Thus, the song is something other than language – even if announced through language. But it is a paratactic dispersion that seeks to free the pure voice. In one of the “Pindar fragments”, this is what Hölderlin claims: “then only the difference between species makes a division in nature, so that everything is therefore more song and pure voice than accent of need or on the other hand language”. [3]

I am caught up in the moment of “division in nature”. The subtraction from representational language allows for the true appearance of a more originary separation, where the song can finally emerge in its proper attunement with the world. The becoming song is another form of separation, which institutes the passage from the Empedocles (tragic sacrifice) to the Pindaric relation to the divine. This is the “highest” poetic challenge for Hölderlin – an impossible task after the fleeing of the gods. It is definitely maddening. Nevertheless, the song remains. It puts us in nearness in a postmythical world without recoiling back to the image of the tragic. Indeed, as Hölderlin says in passing in “The Ground of Empedocles”, his time already “did not demand a song” [4]. The passion for natural unity was an Olympic illusion whose retribution could only become romantic debris as the exclusive possession of the dichter. On the contrary, the clearing for the song has emancipated itself from the exclusivity of the modern autonomy of dichtung as mimetically separated from the experience of life. This is what the song wants to pursue before the closure of a significant (and signifying) world. Fundamentally, this means a subtraction from the continuum of language, and thus a form of prophecy as elaborated by Gianni Carchia in a difficult passage from “Dialettica dell’immagine”:

“Where music and prophecy, in the inexhaustibility of their tension – an endless effort to overcome the Babel dissipation of language by freeing the residual state of the unexpressed – testify to a disposition to meet precisely in what passes, in pure transience, the need for salvation and the idea of fulfillment, beauty as a totalitarian and exclusive appearance is, on the other hand, nothing but the product of an arrest in the dynamics of the spirit which withdraws from the horror of worldly laceration to seek refuge on the scene circular and static of the eternal”. [5]

If the song addresses the prophetic it is because language has fallen to the fictitious needs that arrest the experience of the human being into the exclusivity of rhetorical force and poetic genius. Is not the song a refusal of both? A refusal now aimed at the “highest” task – that is, the serene life? Against the exclusivity of appearance that Carchia points to, what appears discloses a different sense of law. A few verses in the same poem, in fact, we are confronted with the “law of destiny”: when there is serenity (or peace) there are also words. And a few lines after: “the law of love” is equilibrium from “here” to the “sky”. What appears there is the landscape that comes through in a pictorial depiction: “[Sein bild….Und der Himmel word wie eines Mahlers Haus Wenn seine Gemälde sind aufgestellt] / “[su cuadro e imagen….y el cielo se vuelve como de un pintor una casa cuando sus cuadros de exponen]”.

Does not this also speak to the insufficiency of language, which justifies the step into a folded painting? There is a painting and a vanishing image, but also the painter marveled at gleaming finished masterpieces. Is painting the original placeholder for the song as originary attunement of life? Perhaps. But in its enactment it also means that the song is impossible to disclose except through pictorial invocation. It is a painting of a life in the world, and nothing less. The transfiguration of the law places men no longer into undisputed submission, whether in its positive or natural determinations, but rather of a “strict mediacy” that is ethical in nature. A third way of the law that does not renounce the problem of separation.

Monica Ferrando has insisted upon the enormous importance of this conception: the fact that Pindar’s nomoi, in fact, relates to the nomos mousikos, which is fundamentally dependent on gathering substance of the song [6]. The strict mediacy finds itself between the mortal and the immortal. It is definitely not a “return to the state of nature”, and I do not see how it could be reduced to “genius”, except as an ethics whereby appearing is no longer at the service of objectivity [7]. Adorno was of course right: it is a ruthless effort to deal with disentanglement of nature – and the nature of reason – but only insofar as it is a return to the song. Or, at least, to have a path toward the song: a lyricism of the indestructible against the closure of a finite time dispensed and enclosed.

Notes

1. Friedrich Hölderlin. “Fiesta de Paz”, in Cantos hespéricos (La Laguna de Campona, 2016), Traducción y Versiones Libres de Veronica Jaffé, 93. I thank Philippe Theophanidis the exchange initial exchanges on these verses.

2. Friedrich Hölderlin. “Pindar fragments”, in Essays and Letters (Penguin Classics, 2009), 566. Kindle Version.

3.Ibid., 565.

4. Friedrich Hölderlin. “The Ground of the Empedocles”, in Essays and Letters (Penguin Classics, 2009), 465. Kindle Version.

5. Gianni Carchia. “Dialettica dell’immagine: note sull’estetica biblica e cristiana”, in Legittimazione dell’arte (Guida Editori, 1982), 21.

6. Lucia Dell’Aia. “Il Regno d’Arcadia: intervista a Monica Ferrando”, in Il mito dell’Arcadia (Ledizioni, 2023), 121.

7. T.W. Adorno. “Parataxis: On Hölderlin’s Late Poetry”, in Notes to Literature (Columbia University Press, 1992), 148-149.