Shadow docket (term)

Shadow docket is a term used to describe the emergency orders and summary decisions made by the US Supreme Court outside its normal case docket and without oral argument. While the term itself was first coined by University of Chicago Law professor William Baude in 2015, the concept of a shadow docket has been part of Supreme Court procedure since the institution was established. Traditionally, the shadow docket was used rarely and only under certain circumstances. It was used when the Court believed an applicant was at risk of suffering irreparable harm in the event their case was not decided as quickly as possible. However, in the late 2010s, the Court began using the shadow docket with greater frequency, including issuing orders and making decisions in controversial cases that would normally be reserved for the normal docket. This led to criticism from individuals on both sides of the political aisle. In the 2020s, the Supreme Court used the shadow docket to help undermine the long-standing Roe v. Wade decision on abortion rights.

Background

The Supreme Court is the highest court in the United States. It has the authority to decide appeals on all cases tried in federal court and all state court cases that concern federal law. Created through the passage of the Judiciary Act in 1789, the Court has been hearing arguments and rendering decisions since 1790. Although the number of justices on the Court occasionally fluctuated in its early years, there have been nine justices since the mid-nineteenth century. These justices are nominated by the president and confirmed by the US Senate. By law, they are entitled to serve for life or until they choose to retire.

The Supreme Court spends most of its time hearing oral arguments and making decisions on cases for which the justices have chosen to grant a writ of certiorari—that is, cases they have decided to review. The majority of these cases involve decisions made by lower appeals courts. Cases may reach the Supreme Court when a circuit court or state supreme court issues a ruling that one of the parties involved wishes to appeal. If an appeal is made and the Supreme Court grants a writ of certiorari, the Court subsequently takes briefs and conducts oral arguments on the case in question, considers the related court records they have been given, and ultimately renders a decision. The justices also write detailed opinions explaining why they support the Court’s final decision or why they dissent. The process through which these types of cases—referred to as merit cases—are decided usually takes a considerable amount of time to complete. In addition, decisions can only be made when the Court is in session from October to around the end of June.

In addition to deciding merit cases, the Supreme Court is also tasked with other responsibilities, including responding to emergency applications from federal circuit courts. Such applications may ask the Court to do things like approve a stay of execution, stop a deportation, curtail the implementation of a circuit court order, or set bond for a defendant. Under normal circumstances, these matters are also usually decided only after the Court has heard oral arguments.

Overview

The shadow docket is essentially an alternative way for the Supreme Court to issue emergency orders and make summary decisions that bypass many of its standard procedures. Under normal circumstances, the Court reaches decisions on matters through an extensive process that involves briefings, oral arguments, and carefully written rulings. These rulings explain the Court’s decision within the context of existing law and legal precedent, as well as written dissent from justices who disagree with the majority opinion. While this process takes a great deal of time to complete and, therefore, means that cases are usually not settled in anything resembling rapid order, it is considered necessary because it ensures that the Court’s decisions are as fair and transparent as possible. When the Court instead utilizes the shadow docket, it foregoes its built-in safeguards to be able to issue emergency orders and make summary decisions more quickly.

The term shadow docket was first coined by University of Chicago Law professor William Baude in 2015, but the concept itself has existed since the Supreme Court’s creation. For much of the Court’s history, the shadow docket was rarely used and typically reserved for emergencies. A case can only get on the shadow docket through a special application. A litigant wishing to get their case decided via the shadow docket applies to any one of the nine justices, who can then forward the case to the rest of the Court if they so choose. If at least five of the justices agree to grant the litigant’s request, the case is placed on the shadow docket. Traditionally, such requests are only granted when the case in question meets certain criteria. Most importantly, the litigant must be able to prove that they would suffer “irreparable harm” in the event that their application was not approved. When the case is heard, there are no oral arguments, though opposing attorneys do have the opportunity to file briefs in opposition.

Traditionally, the shadow docket was only used to resolve cases in certain situations, such as when the Supreme Court wished to deny petitions for certiorari, to deny emergency relief petitions for cases that fell short of meeting the established emergency criteria, or to grant the parties involved in a case more time to file briefs. In the 2010s, the Court began using the shadow docket more frequently and in a wider variety of circumstances. Specifically, its use increased dramatically during the administration of President Donald Trump. Over the course of Trump’s term, the Court used the shadow docket to grant more stays of nationwide injunctions than it did during the two prior administrations combined. At the same time, the Court also started using the shadow docket to make summary decisions on some controversial matters, such as election issues and COVID-19 pandemic safety measures. All of this led some critics to worry that the shadow docket was being abused to the point of becoming an unduly powerful political tool.

In 2021, the Supreme Court employed the shadow docket in the case of Whole Women's Health v. Jackson. This case revolved around the Texas Heartbeat Act, which made any abortions in the state of Texas illegal after six weeks of gestation. In September 2021, the Supreme Court declined to block the legislation through the use of a shadow docket, allowing the Heartbeat Act to go into effect and overturning decades of federal protection for abortion rights. The Court also employed the shadow docket in the June Medical Services LLC v. Russo case. In this case, the Louisiana Abortion Law attempted to place limits on where doctors could perform abortions. The Court used a shadow docket to issue an emergency stay to delay the case until it was in full session. These cases exemplify how shadow dockets can significantly affect law, although the process lacks transparency.

Bibliography

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Vladeck, Steve. “Justice Kagan's Dissent Shows How the Supreme Court Abuses its Shadow Docket.” Washington Post, 3 Sept. 2021, www.washingtonpost.com/outlook/2021/09/03/shadow-docket-elena-kagan-abortion. Accessed 21 May 2024.

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