Shadow Dockets

The well know process of the Supreme Court is that after scrutinising briefs from litigants and amici curiae (friends of the court), the justices hear oral argument in these cases and then, weeks or months later—release opinions explaining why one party won and the other lost. 

But this methodically adjudicated “merits docket” represents a shrinking proportion of the Supreme Court’s  business. Although the justices handle about 60 cases this way each year (down from more than 150 in the 1980s), they deal with thousands of other legal tangles without fanfare and with scant explanation using 'Shadow Dockets'. (a term coined in 2015 by Will Baude of the University of Chicago) includes emergency appeals from parties who believe they would be irreparably harmed without quick intervention from the justices. Whereas cases arrive on the regular docket if at least four justices agree to take them up, anyone can try their hand at filing an emergency appeal. Most shadow-docket orders are unremarkable. Some, like that of the man seeking to lift the federal airline mask requirement so he could fly to Germany without triggering an anxiety disorder, border on the comical. (His application was denied.) 

However, some cases are more significant. On August 24th, with the liberal justices in dissent, the court rejected President Joe Biden’s plea not to be compelled to reinstate Donald Trump’s border policy, which required asylum seekers to await word on their applications while living on the Mexican side of the southern border. 

 Requests from condemned criminals to have their executions blocked or delayed routinely reach the justices this way. Of the 8,000 or so annual petitions to review a decision in a lower court, about 99% are denied. 

That changed in 2017 when several policies of the Trump administration ran aground in lower courts. A litany of Mr Trump’s moves—from a ban on travel from Muslim countries and diversion of funds to pay for his border wall to a prohibition on trans soldiers and aggressive use of the federal death penalty—were blocked by federal judges, prompting the administration to beg the Supreme Court to intercede. According to Steve Vladeck, a law professor at the University of Texas, the Trump administration filed a staggering 41 emergency applications in its four years—compared with just eight during the 16-year period when George W. Bush and Barack Obama sat in the Oval Office. That is a 20-fold increase in presidential use of the shadow docket. And it paid off: of Mr Trump’s 41, the justices at least partially came through for him 28 times. 

Five of the six conservatives who now command the majority on the US’s most powerful court have rammed through some of their most contentious and extreme partisan decisions using the so-called “shadow docket” – unsigned orders issued frequently late at night, in literal and metaphorical darkness. The orders do not reveal who voted for them or why, often providing one-line explanations of the legal thinking behind them. 

The spike in shadow-docket cases involving issues of national importance—including battles over election rules and public-health measures to fight covid-19—highlights a deficit of transparency and accountability. One such order alone, the decision on the shadow docket to block the Biden administration’s January 2022 requirement that large employers mandate Covid vaccinations for their workforce, affected more than 83 million Americans – about a quarter of the US population.

“The rise of the shadow docket reflects a power grab by a court that has, for better or worse, been insulated from any kind of legislative response,” Vladeck writes.

 Mr Vladeck, who testified before a House subcommittee investigating the shadow docket in February, wants to see the court include “at least a brief explanation” whenever it makes a change to the status quo. Leah Litman, a law professor at the University of Michigan, says a justification is particularly important when the Supreme Court reinstates a death sentence that has been blocked by a lower court. Mr Vladeck would also like the justices to own up to their votes by identifying themselves and, for important issues that do not require immediate resolution, hold fast-tracked oral arguments before rendering a judgment.