Among the circle of people outside the Supreme Court but closest to it – the lawyers who practice there and the professors who study it – there is much talk and a lot of criticism these days of the problem of what they call the “shadow docket.” That is the Court’s choice, increasing in frequency and in legal consequences, of deciding important controversies without deep study, and without full explanation and sometimes none at all.
Unlike regular rulings, the kind that emerge after thorough vetting and prolonged deliberations, the pronouncements the Court is making more often on that docket are the products of a quickie, once-over-lightly examination that leaves lower courts, attorneys and the American public guessing about what they mean.
Sometimes, of course, the Court is required to act quickly, perhaps in emergencies, but those occasions ought to be rare, and – even when they happen – ought to be clear as to how the Court acted and why. The opaque process of the “shadow docket,” however, is a phenomenon that the Court as a whole does not concede is a problem, even though individual Justices have at times joined in the criticism. There seems to be little prospect now of a change.
This is not some inside secret, understood only by attorneys or scholars, but is actually occurring out in the open, sometimes audaciously and often producing deep divisions among the Justices. It leaves no one satisfied that the Court has done this part of its work seriously, or well. It has multiple flaws, but these are the most serious:
- The Court increasingly uses this approach to resolve, at least temporarily, major controversies about the law and the Constitution. It has done that several times during the pandemic, for example, to declare sweeping rights for churches to hold worship services that violate government rules requiring masks or social distancing. During the Trump Administration, on a significant number of occasions, the Court allowed controversial policies – like the Muslim ban — to go into effect after being blocked by lower courts amid huge controversy.
- Often, there is no explanation at all of why the action was taken; there may be only a largely unrevealing sentence or two. Often, dissenting Justices will write more, much more, than the majority, and are left with no response to their critique.
- How the individual Justices voted is frequently left out or left unclear.
- Blunt instruments of judicial power, these rulings often provide lower courts with little or no guidance about how the Court expects them to follow its lead.
- The Court acts on the barest-bones of legal filings, hardly the foundation for an important case before the Court.
- The Justices sometimes act on a matter after the policy or action being challenged has ended or lapsed, resulting in what are merely advisory opinions that no longer involve an actual “case or controversy,” as the Constitution requires.
- If several similar disputes arise in succession, the Court sometimes treats its first pronouncement as setting a controlling precedent – contrary to a long-standing policy that decisions that get less than full review are not supposed to be binding beyond the two parties involved.
- By taking such action much more frequently than in any prior period in history, the Court encourages aggressive lawyers to make more such demands, thus making lower courts seem superfluous rather than helpful partners in the normal process of developing legal doctrine.
Let’s back up to look further into how this came about, starting with a simple explanation about courts and dockets.
Like all courts, the Supreme Court maintains a running list of cases that are appealed to it, called the docket. That is a public document, openly available on the Court’s website. It enables the Court to keep track of the cases as they move through the process: accepting cases for review (or denying review), scheduling the accepted cases for hearings, providing links to all of the filings, and issuing final decisions. The public can follow along because of that docket.
That is the business of the Court that the public sees happening, year in and year out; the Court is very proud of how open it keeps this normal process. A source of special pride is that, for the cases that move through this regular routine, the Justices provide full and often very lengthy explanations of the reasoning they use and of how individual Justices vote and how they seek to explain their positions. In short, the full story emerges, for all to see.
Not every case that reaches the Court, however, goes through that customary process. In fact, the Court believes that it could not keep up with the workload if it were to give every case that full treatment. These days, the Court can comfortably use that process only in 75 to 80 cases a year, out of thousands appealed to it every year (5,400 total in the last term).
Sometimes, the outcome is so clear – dictated by prior precedent, perhaps – that the Court acts “summarily.” That is, it decides the case without full briefing and without any hearing. That may happen a dozen or so times each term. When it does, the result is not considered to have much force as precedent, because of the truncated process.
But there is also a rather busy part of the Court’s work that occurs outside of both the full-treatment and the summary processes. And that is where the “shadow docket” has come into being. The public can follow some of this process, too, because the Court’s docket shows the requests in this category with the letter “A” (for application) in the case number; for example, a case given the full treatment might be numbered 20-99; a “shadow” entry would be 20A99.
It has long existed under what the Court considers its “in-chambers” activity – meaning, fundamentally, that it is done in the Justices’ offices not together as a sitting Court. Some courts call this the “motions practice.” It involves requests for procedural action, perhaps to delay a lower court ruling while it is being appealed, maybe to temporarily stop a death sentence from being carried out. A single Justice can handle such a request; if one Justice denies it, the plea can go to another Justice; ultimately, the issue may go to the full Court. But it never engages the full Court in the way that the full treatment process does.
What distinguishes this process from the others is that the Court acts on even more limited information, sometimes from only one side, other times from both sides, but just enough to suggest what is being sought and why it supposedly is, or is not, deserving of action by a Justice or by the Court. This is not even close to what lawyers understand as a true “adversary process,” where both sides get full opportunities to argue their positions, counter each other, devise tactics for winning votes from the Justices, then deploy those tactics in extended, open-court arguments.
For most of the Court’s history, these procedural actions were not a prominent part of the Court’s work, normally got only a little notice, if any, in the nation’s press, and did not seem to need reforming. The process had its procedural utility, but not much more.
It acquired the label “shadow docket” only in recent years, when scholars began noticing how much more frequently the Court took what supposedly were temporary or preliminary actions that – in fact — were more like actual decisions, declaring outcomes but usually without much explanation. These actions came down like “lightning bolts,” according to a 2015 law review essay by University of Chicago professor William Baude, who is credited with inventing the label “shadow docket.”
These were not just actions by the Justices to keep lower courts in line, Baude suggested, but often amounted to decisions on the merits, issued without warning.
When the Trump Administration came into office, taking bold new legal initiatives, many of which ran into roadblocks in lower courts, government lawyers discovered the value of the “shadow docket.” They soon found that an increasingly conservative majority on the Supreme Court was sympathetic to putting those lower court orders on hold. That meant, of course, that a contested policy could go into effect, with at least implied support from the highest tribunal. That administration far exceeded what any other administration had done with these maneuvers, making routine use of what previously had been unusual.
Lately, some in Congress have shown an interest in the process. It came up for its first hearing last month in the House of Representatives. Congress does have some authority to regulate how the Supreme Court handles its work, but any serious legislative attempt to control how the “shadow docket” now functions would no doubt meet resistance from the Court. It may be that real change will only come when the Court itself accepts that this is, indeed, a problem.