Does Evil Lurk within the “Shadow Docket”?

Susan Sullivan Lagon | November 2, 2021

Congress provides plenty of examples of procedures that were once rarely deployed but have since become routine: Filibusters instead of debate in the Senate, Continuing Resolutions (CRs) in place of regular annual appropriations, and playing chicken with the debt ceiling are among the most obvious. Fail-safes designed for exigent circumstances have become standard operating procedure. To quote the Doobie Brothers, “What were once vices are now habits.”  But Congress isn’t the only one engaging in irregular order: the Supreme Court’s use of the “Shadow Docket” increased markedly after 2017 and has, with Texas’s SB8 law, prompted wider awareness. Given the alarms being sounded in some quarters that these conventions conspire, it’s important to step back to understand this trend by breaking down just what the shadow docket it, how it’s being used differently, and why that’s important.

The “Shadow Docket” is the “orders list”

A growing number of decisions on controversial issues are handled summarily on the “orders list,” typically used for noncontroversial administrative matters. Unlike the more familiar “merits docket” which features at least four justices agreeing to hear a case, briefs filed by lawyers and amici, oral arguments, deliberation, and ultimately written opinions explaining the Court’s rationale, the orders docket is designed to expedite routine matters requiring little to no explanation. Examples include denying petitions for certiorari, allowing extensions for lawyers to file briefs, granting injunctions, or staying executions—in other words, narrow matters that affect few people or that buy time, not major policy issues.

The merits docket has been shrinking steadily with just 73 cases heard in each of the two most recent terms. While the orders docket makes up a huge chunk of the Court’s work, it is so obscure that in 2015 Professor William Baude (who clerked for Chief Justice John Roberts) dubbed it “the shadow docket.” The term stuck but is not without its critics who object to the implication that something nefarious is going on. Justice Samuel Alito prefers to call it “the emergency docket” and likens Justices to EMTs who have to act quickly.

The orders list is not new, but it’s being used in novel ways

That the shadow docket accounts for thousands of Supreme Court actions each term is hardly new. It’s been in use since 1790. Today, each Justice is responsible for a Circuit of the U.S. Court of Appeals and dispenses with administrative matters, often dismissing a case if the legal question it poses is “not substantial.” What’s new is how dramatically the frequency, speed, and import of shadow docket cases have increased. Congress has taken notice and for the first time, both the House and Senate Judiciary Committees held hearings on the topic.

Testifying before the House Committee, Professor Stephen Vladeck provided data illustrating how often and how successfully past presidents have prevailed upon the Supreme Court for relief via the shadow docket. From 2001-17 (the period including both terms of Presidents George W. Bush and Barack Obama) the Justice Department sought emergency relief eight times, once every other term, and the Court granted four of those requests. President Trump’s administration, in contrast, filed 41 petitions for relief in just four years with a success rate of 70%.

Shadow docket cases during the Trump administration differed in kind as well. Among the far-from-routine matters in which the Supreme Court intervened: Reinstituting the federal death penalty, banning transgender troops from the military, banning travelers from majority-Muslim countries, diverting funds to build the wall on the border with Mexico, blocking state COVID-19 restrictions, blocking an extension of an eviction moratorium during the pandemic, and requiring the Biden administration to restart the “remain in Mexico” policy for asylum seekers. It’s impossible to ignore the ideological blocs on the bench when looking at how often four justices have dissented publicly in shadow docket cases. According to Professor Vladeck, there were only two cases with a 5:4 split in the October 2017 term but in the next two terms, there were 20. In the October 2019 term, there were almost as many 5:4 splits on the shadow docket (11) as there were on the merits docket (12). Meanwhile, the Supreme Court’s approval rating has plunged to 40%.

Why this matters for current policy and where we are now

The shadow docket was thrust into the spotlight most recently when five Justices allowed a Texas law banning abortions after a fetal heartbeat is detected to stand. The majority was at pains to point out that it didn’t reach the statute’s merits but rather addressed who was able to bring the suit since the law’s unusual enforcement provision was deliberately written to evade judicial review. Some in the minority saw the statute as blatantly unconstitutional. A flurry of activity followed in short order: The District Court enjoined the statute, the Fifth Circuit overturned the ruling, the House swiftly passed a bill to ensure nationwide access to abortion which will die in the Senate, predictable partisan fireworks exploded at a Senate hearing, Justice Alito delivered a speech to dispel the notion that “a dangerous cabal is deciding important issues in a novel, secretive, improper way in the middle of the night” the Justice Department sued on behalf of women seeking to exercise a constitutionally protected right, and the Supreme Court agreed to revisit the case, specifically, the federal government’s involvement. Notably, it’s the fastest the Supreme Court has acted since another blockbuster case from the shadow/emergency docket, Bush v. Gore in 2000.

There have (rarely) been cases of larger importance that have been decided by the shadow docket before 2017: the Rosenberg executions, Nixon bombing Cambodia.  But the similarities to the use of the shadow docket for the stay in Bush v. Gore are not promising for either policymaking in a divided country or for the way Americans see our highest court. The Texas SB8 law was decided in haste from the shadow docket by a divided Court, with cries of politics trumping precedent—just like Bush v Gore, another case that damaged the Court’s reputation.

Susan Sullivan Lagon is a Nonresident Senior Fellow at the Government Affairs Institute

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