The Supreme Court of the United States as an institution is often praised for its transparency and articulate reasoning that serves as a lodestar for judges, scholars, and law students. When opinions are handed down, they are closely studied for legal arguments that eventually make their way back to court in other cases.
The standard operating procedure to have a case heard before the Court is a long and often slow process that prioritizes careful decision-making over speed. A lawyer will file a petition for writ of certiorari asking the Court to grant review of a case, and if granted, countless briefs, documents, and legal arguments are filed as the Justices ponder over the case. Additionally, by the time the Justices hear a case, that legal question has typically been heard by a panoply of lower court judges. These cases make up the regular docket for the Court. Of the approximately 8,000 petitions for review each Term, only about 80 cases are granted review.
However, the regular docket only accounts for part of the picture. Each Term the Court also hears a number of emergency applications for relief and summary decisions. In the 2019 Term, emergency orders largely fell into three prominent categories: COVID-19, Election issues, and Trump administration policies.
These emergency orders and summary decisions have been coined the “shadow docket” by the University of Chicago law professor Will Baude. The term only dates back to Baude’s 2015 article, however, it is a mechanism that the Supreme Court has used since its inception. The “shadow” metaphor highlights the contrast between such emergency orders and the merits cases that comprise the regular docket because these orders defy the Court’s “normal procedural regularity.”
The Shadow Docket
The shadow docket is made up of all the other decisions that the Justices hand down each Term. These decisions don’t receive anywhere near the same amount of attention that the merits cases on the regular docket do. Merits cases are near impossible to miss; their rulings are met by reporters and crowds on the steps of the Supreme Court. These cases are argued in public, scheduled in advance, and result in opinions that detail the Justices’ reasoning at length. Additionally, merits cases are subject to intense professional and academic discussion and dissection. Merits cases also receive at least two full rounds of briefing.
In contrast, shadow docket rulings may have only one round of briefing. These rulings typically have no reasoning accompanying the opinion nor do they indicate how the Justices voted—unless a Justice files a concurring or dissenting opinion. Shadow docket rulings may be handed down at all times of the day—even in the middle of the night.
The shadow docket has never really garnered much attention because most of the time it is used to deny petitions for emergency relief or grant parties additional filing time for briefs. The purpose the shadow docket serves is mainly one of procedure and technical legal matters. Historically, there are a few very notable exceptions to the mundane norm—the stay order of the Florida recount that became Bush v. Gore is one. But in recent years, particularly during the Trump administration, there has been a dramatic increase in the size and scope of shadow docket rulings. Where there were only eight instances of the Justice Department requesting emergency relief from the Supreme Court from January 2001 to January 2017, the Trump administration filed 41 applications for emergency relief over four years. Of those 41 applications, one was held in abeyance and four were withdrawn. Of those 36 remaining, 27 of them provoked public dissent. Of the eight from the 2001-2017 period, only one provoked a public dissent.
These numbers suggest that perhaps the shadow docket is becoming more divisive. In fact, in the October 2019 Term, there were 11 shadow docket orders that split the Court 5-4 to 12 merits cases with the same split. It is impossible to overlook COVID-19’s impact on procedural regularities and the Supreme Court has recently taken to answering constitutional questions by way of the shadow docket. In November 2020, at 11:56 p.m. EST on the night before Thanksgiving, the Supreme Court handed down a significant shadow docket ruling blocking New York’s COVID-based restrictions on certain religious services. Again, on February 5th of this year, the Court enjoined a number of California’s COVID-based restrictions on indoor religious services at 10:44 p.m. EST. It is unknown why there is this surge in shadow docket rulings on weighty legal issues. Professor Stephen Vladeck of the University of Texas School of Law claims that COVID-19 and election cases aside, this dramatic uptick is undeniable. Some commentators have criticized this shift in using the shadow docket to make important decisions that fly below the “PR radar.” Others, like Vladeck, believe it could be related to a repositioning of how Justices are weighing the traditional emergency order factors.
It is important to analyze some benefits and drawbacks of this newfound prominence of the shadow docket because it likely is not retreating into the shadows any time soon.
When acting on the shadow docket, the Supreme Court faces important constraints. Notably, cases that make their way to the regular docket generally take a long time. Not including the amount of time that it takes for the process to get to the Supreme Court, there are countless hours of conferences, research, and review that accompany a regular docket case. Using the shadow docket to answer more substantive and weighty questions expedites the process somewhat. In such time-sensitive situations, when the question is whether the Court should pause proceedings—as a stay for execution or an election dispute—acting swiftly observes external deadlines.
Furthermore, the Court needs flexibility for matters that arise unexpectedly, as in the example of COVID-19. Professor Michael Morley of Florida State University College of Law believes that utilizing the nature of the shadow docket for purposes of simply getting the Justices to agree on an ultimate outcome may be more beneficial than issuing a hurried opinion that is likely to be treated as precedential. After all, a shadow docket ruling will likely not have the same weight as a full written opinion. Instead, some lower courts view these orders more as “signals.”
The perceived benefits of shadow docket rulings should not be viewed in isolation, however. The recent magnification of the shadow docket has led to increased scrutiny as to what else may be hiding under the surface.
The Dark Side
Perhaps the most significant consequence in the swell of shadow docket rulings is the lack of any legal reasoning. Merits cases are given a fair amount of attention and after study, it is often abundantly clear why the Court took the action that it did. In contrast, shadow docket rulings are often without any explanation from the majority of the Justices. Without that reasoning, lower court judges and scholars are unable to precisely follow the guidance of the Court. Having individual Justices pen opinions also helps keep them accountable. Both Justice Ginsburg and Scalia once agreed that signing their name prevents unnecessary waffling from one view or principled jurisprudence to another.
Hand in hand with an absence of legal reasoning is the anonymity of the vote in shadow docket rulings. Unless a Justice decides to contribute a concurrence or dissent, knowing how the Justices voted is a fool’s errand. This is not to say that the Court’s deliberative processes must not have any confidentiality, but in a divisive case introduced via the shadow docket, a “mystery Justice” casting the tie-breaking vote has the potential to undermine the public’s perception of the Court’s consistency.
Using the shadow docket to decide significant questions may also deprive affected parties the ability to participate in filing amicus briefs, to receive a full briefing, and could create an overwhelming risk of error. There is a common refrain that the Court is one of “final review, and not first view.” In some shadow docket rulings, the Court is stepping in at an early stage of litigation with an order that can affect millions.
Justice Sotomayor has been critical of the Court’s actions in the growing pattern of shadow docket rulings. The Court exists through its perceived legitimacy. The lack of transparency in voting and reasoning combined with the confusion created for lower courts and the potential for permanent effects could subject the Court to increased accusations of being excessively beholden to the politics of the moment.
Congress has been listening to the commentators: The House Committee on the Judiciary held a hearing on the shadow docket just last week.
On February 18th, the House Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet invited witnesses to testify about the shadow docket and propose potential reforms.
Professor Vladeck suggested two basic forms of potential reform on the shadow docket. First, taking pressure off of the shadow docket. This includes mandating aggressive briefing schedules among other things. Second, he suggests that Congress should codify historical shadow docket norms. This includes the factors test used for considering emergency relief.
Solicitor General of the District of Columbia Loren AliKhan called upon Congress to act in their Article III powers to control the Court’s appellate jurisdiction or, in their authority over the Federal Rules of Civil and Appellate Procedure, provide additional procedural safeguards.
There was bipartisan support that more transparency was necessary to bring the shadow docket into the light.