police powers – 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.

Anna Grzymala-Busse’s recent study Sacred Foundations: The Religious and Medieval Roots of the Modern State (Princeton U Press, 2023) makes a compelling historical and data analysis grounded case for the emergence of the modern state through the process of the Church’s autonomization in its ongoing disputes with the European monarchs across the centuries. This process of the secularization of ecclesiastical forms (conciliarism, legal administration, the uniformity of procedures, rules for governing institutions, the emergence of educational training and mechanisms for political representation and fiscal control, etc), however, is silent about two defining features of the modern secular state. And I do not think it is an exaggeration to say that these two elements bring forth the way in which political authority was established after the victory of modern European Enlightenment. Busse’s book, if anything, has the felicity of putting in perspective, even if only in negative, the two pieces of the puzzle: a) coercion as guarantee by a legal process (not just the monopoly of force); b) and the inter-institutional coordination that we tend to associate with a ‘principle of an internal rule of recognition’ between different spheres of bureaucratic rationality. Busse admits for (a) that “….the authority of the people over the whole Church was not statelike. It depends on moral authority and influence, not on coercive control. Both kings and popes cajoled, convinced, and threatened rather than demanded or extracted force” (Busse, 78). But ruling on morality and influence are two weak presuppositions to guarantee systemic, homogeneous and uniform process required by institutional authority.

In other words, the Church was able to construct forms of civil mediations, although it lacked the power of efficacy; that is, a coherent set of reasons for action that would define a strong concept of sovereign authority as service (to put it in Raz’s well-known formulation). The classical apothegm by which ‘kings rule rule but do not govern’ (Rex regnat sed non gubernat) now is protracted by the exercise of an efficacious rule, which means laying out a combination of forms and a well-ordered power over coercive forms. In fact, this is one feature that will define the legitimacy of the Enlightenment according to historian Franco Venturi; the discovery of punishment understood within the scheme of a trade off between the “necessity of the right to punish when man was not able to re-establish communism” [1]. Hence, the genesis of modern legitimation is not exclusively “a given” vis-a-vis the structure of separation of powers and the ultimate source of the plenitudo potestatis; rather, it requires a second-step rule, as it were, to convalidate the specificity of institutional authority with ample concrete efficacy of police powers in charge of compliance and punishment. The reach and exercise of public police powers and the systematic ordering of penal codes through a criminal procedure and its guarantees (reasonable doubt, fair trial and due process, no crime published without a previous enacted law, nullum crimen sine lege) is what renders effective and “energic” the principle of authority.

Now, broadly speaking, when it comes to (b) Busse admits that (and this is in spite of its institutional schemes) laying down justice “…the church relied on secular enforcement, for example when it came to religious orthodoxy. […] The carrying out of sentences against heretics and apostates lay in secular hands – those found guilty were handed over the temporal authorities so as to not sully the clergy. Legal coevolution and influence, the struggles between popes and monarchs, and the diffusion of both canon law and personnel into the juridical systems were critical to the rise of constitutionalism and the rule of law in Europe” (Busse, 132-133). This asymmetry between two systems of legal jurisdiction confirm the inexistence of a strong internal rule of recognition that for H.L.A. Hart defines any robust modern legal system of public law. The internal rule of recognition, one must remember, is not a set of principles or norms for social action, but rather the internal mediation between a legislative authority and its internal obedience within a concrete application thereof. The internal rule of recognition binds a central authority with its specific formal enforcement in institutional union of primary rules and secondary rules to avoid the pathology of uncertainty. This is thoroughly absent from the free-floating institutional forms of the medieval church whose principal construction of primary rules was divorced from the objective and rational procedures of its internal coherence (the rule of recognition) that would ground, in time and place, the otherwise abstract primary norm and the pressure of contested social conflict.

But going straight to the crux of the matter, it follows that medieval templates as superbly redrawn in Busse’s studies lack the two fundamental determinations that ground the modern concept of law: law as the necessarily monopoly over coercion (the Austin thesis), and the concept of law as the construction of an internal rule of recognition to unite primary and secondary rules (the Hart thesis). But insofar as all major modern political concepts and mediations are secularized forms of religious and medieval forms – something we can say that Busse’s scholarship also confirms – we can then say that modern legitimacy will consist in the congruence of these two determinations to organize the mediations between civil society and state. Already in his early The value of the state and the significance of the individual (1914), Carl Schmitt will note of this formal transplant: “…the Catholic doctrine of the Pope as the infallible interpreter of the natural moral law and of the content of revelation, who receives the competence to declare state statutes that stand in contradiction with the moral law or ius divino-naturale to be non-obligatory in conscience. The exercise of his potestas indirecta which is regarded as an act of jurisdiction, and which is held, by many canonists, to be determinative of a statute’s validity in state law – contains real vis coactiva, even where the expression potestas directiva is employed in place of potestas indirecta (Suárez, de fide cath, 3.22.1)” [2].

For Schmitt, then, the process of rationalization between ecclesiastical form and the modern legal norms of the state is very much straightforward. This is what constitutes the very texture of secular modernity. But as we know, for Schmitt the secularization of forms was not enough – it must be said that he himself did not negate in his theory of adjudication of his constitutional thought – which is why the construction parameters of his ‘political theology’ proposes supplemental safeguards to isolate law and power, extending the power of secularization into the decision of the potentia dei asoluta (at times this was contained in the theological figure of the Katechon) [3]. But as Carlo Galli has noted, Schmitt’s political theology is far from a “political christology” or a substantive theological politics grounded in natural law; rather it is a resolute affirmation to defend any concrete order from the potential fallouts of the secularized cornerstones of rational neutralization (potentia directiva and potestas coactivva) of state authority [4]. Neither mechanic state forms nor a higher source of morality (natural law) would define the modern law; rather the autonomy of the political in the existential situation could provide the sufficient energy to avoid the self-defeating circularity of ius revolutionis (this is what most of the times is obliterated from the so called question of “decisionism”)[5]. If Busse is correct in making the case that all modern institutions have sacred medieval foundations; Schmitt’s concurrence in the wake of modern secularization will be to define the energy of the political as the defining element that must stand as the threshold of formal transplantations to have a chance within nihilism and against nihilism. It is both things. In other words, formlessness is the constitutive dimension of political forms; an element that defines, in my view at least, the strongest practical element of what it is to inherit a Christian political foundation. The process of secularization is thus infinite and groundless, ultimately without a moral foundation and universal design. Among its many achievements, a book like Sacred Foundations: The Religious and Medieval Roots of the Modern State (Princeton U Press, 2023) has the ability to refine what political theology is, what it meant, and what to make of its endurance and possible iterations in our present.

Notas

1. Franco Venturi. Utopia and Reform in the Enlightenment (Cambridge University Press, 1971), 116.

2. Carl Schmitt. The value of the state and the significance of the individual, in Carl Schmitt’s Early Legal-Theoretical Writings (Cambridge University Press, 2022), eds. Zeitlin & Vinx, 215.

3. See my “Schmitt y Hart: los puntos fijos del concepto de derecho”, 2022: https://infrapoliticalreflections.org/2022/11/07/schmitt-y-hart-los-puntos-fijos-del-concepto-de-derecho-por-gerardo-munoz/

4. Carlo Galli. Genealogía de la política : Carl Schmitt y la crisis del pensamiento político moderno (Unipe, 2019), 301.

5. Jorge Dotti. “Sobre el decisionismo”, en Lo cóncavo y lo convexo (Guillermo Escolar Editor, 2022), 391.