Hiding in the Shadows: The Truth Behind the Supreme Court’s Shadow Docket
November 2022 | Kira Kramer (Staff Writer and Editor)
One of the Supreme Court’s more bizarre cases occurred in 1970, when two lawyers hiked six miles into the woods to request that Justice William O. Douglas prevent Portland, Oregon police officers from using violent tactics to stop protests. In the woods, Justice Douglas held an impromptu oral argument and then left his decision on a tree stump: application denied. [1] This case illustrates how the Supreme Court has relied on emergency applications and summary decisions to produce rulings in time-sensitive situations. Since 2017, however, there has been a significant increase in the number of cases decided through this emergency docket – generating speculation on whether or not its implementation is appropriate. The “shadow docket” was a term coined by University of Chicago law professor William Baude, as he explained that “outside of the merits cases, the Court issued a number of noteworthy rulings which merit more scrutiny than they have gotten. In important cases, it granted stays and injunctions that were both debatable and mysterious. The Court has not explained their legal basis and it is not even clear to what extent individual Justices agree with those decisions…As the orders list comes to new prominence, understanding the Court requires us to understand its non-merits work – its shadow docket”. [2]
Within the shadow docket, emergency applications call for a different procedure than the Court's regular docket. Emergency applications are requests for temporary relief, usually used when a party is seeking a temporary stay of a lower court order. A stay of a lower court order stops the legal proceedings or the action of a party. [3] These applications produce two outcomes: either the Supreme Court denies a petition for certiorari, which is a formal request for the Supreme Court to hear the case, or the Supreme Court accepts the petition and decides the case on its merits. [4] The most important takeaway between the shadow docket and the regular docket is how the application is processed. Emergency stay applications are filed and decided faster than petitions in the regular docket. A regular decision on the merits takes months from the filing of the petition, whereas an emergency stay application can receive a decision within days or hours—including after business hours. [5] Furthermore, emergency applications do not come with a written opinion or an explanation for the decision, which fosters a lack of transparency.
A regular docket must be filed within 90 days of the lower court judgment. [6] The petition is usually accepted around six weeks after its filing. Then, it takes two months to be argued after the case was accepted. The case is ultimately decided one to several months after it was argued. Regular decisions using the merit docket usually have oral arguments lasting hours. Following the oral argument, a lengthy ruling is produced including opinions from both the majority and minority. The majority opinion is a decision that is joined by more than half of the judges in the Supreme Court. On the contrary, shadow docket cases do not require any oral argument, will have a decision rendered in days or even hours, and usually receive little to no explanation for that decision. Clearly, there is a significant discrepancy between the two dockets and the effect that the different procedural standards have on the laws impacted by their decisions.
There are current criteria that a case must meet in order to be considered for an emergency application. The first is that there must be a reasonable probability—a factual basis that would lead a reasonable mind to a conclusion—that four justices will grant certiorari and agree to the merits of the case. [7] Next, there must be a fair prospect—a 51% chance that a person will be successful in their pursuit of legal proceedings—that a majority of the Court will conclude upon review that the decision below on the merits was erroneous. [8] Then, after exploring the relative harms to the applicant, respondent, and the interests of the public at large, the Court must determine that irreparable harm will result from the denial of the stay. [9] Essentially, a party requests relief from a lower court order that is about to be implemented, arguing to the Supreme Court that the lower court decided incorrectly. If the party’s petition meets the aforementioned criteria and can prove that they will face irreparable harm, then the emergency application will be added to the Court’s shadow docket.
There are two plausible tracks that the temporary relief provided by the shadow docket provides for Court decisions. [10] The decisions made by the docket only last until the Court denies the petition for certiorari, meaning the lower court's ruling stands, or the Court eventually decides the case on the merits—which will produce a final ruling. [11] However, the shadow docket ruling impacts policy beyond these two tracks. For example, any election-related issues that are time-sensitive and decided using the shadow docket take precedence over the lower court ruling because the Court will not hear the merits case before the election occurs—giving the emergency application the final say. Additionally, COVID-related rulings are an example of how shadow docket rulings become precedent across the U.S. in times of emergency and beyond.
Historically, shadow docket cases have been more controversial and obscure, leading to public disagreement and further transformation of the docket over time. At first, an individual Justice would be issued the case, and then they produced a decision without the involvement of the other Justices. The treatment of the shadow docket started in the 1980s, when the Court ceased to adjourn during summers. Justices then began to decide on shadow docket cases in unison. [12] Another historical case, coincidentally involving William O. Douglas, was the use of emergency applications to grant a stay of the execution of Julius and Ethel Rosenburg—who were convicted of spying on behalf of the Soviet Union. The shadow docket was also used to issue an emergency injunction ordering a halt on the Nixon administration’s bombing of Cambodia. [13] Additionally, the shadow docket has been used as a way for the Court to manage its workload by quickly issuing decisions to refuse to take on various cases. Whether to manage the caseload or respond to emergency situations, there has always been anonymity surrounding the use of the shadow docket.
The use of the shadow docket has continued to rise throughout history but has increased exponentially since 2017. [14] Not only has the frequency of the cases increased, but the types of cases within the docket have shifted from their former uses. Today, many of the cases decided using the shadow docket involve abortion restrictions, limited COVID precautions, religious exemptions to generally applicable rules, fast-tracking executions, reinstating anti-immigrant policies, and many more. [15] For example, during the 2020 election, the Court used emergency applications to grant a stay which reinstated modifications to election rules that were ordered by a federal judge. The judge placed the order for the November election due to the coronavirus pandemic, but the Court ruling ultimately made it harder for election officials to receive absentee ballots. [16] Additionally, in Roman Catholic Diocese of Brooklyn v. Cuomo (2020), former New York Governor Cuomo tried issuing an executive order to limit the number of people who could attend church services during the pandemic. [17] The Court issued an emergency stay ruling on Cuomo’s order, and the ruling in this case became precedential in lower courts throughout the entire country. [18] Then, in September of 2021, five justices were able to use the docket to refuse blocking a Texas law that would ban abortions after six weeks, including cases of rape and incest—which contradicted the at-the-time upstanding decision in Roe v. Wade. [19] The majority decision was only one paragraph long. [20]
There are several problematic consequences of the increased use of the shadow docket and its ramifications on laws. [21] Most of the rulings are produced without any explanation or reasoning from the Justices. That leads lower courts and executive officials to speculate why the Court ruled the way it did, and it allows the possibility for lower courts to be held to an incorrect standard. The anonymity of the vote makes it more difficult to decipher what the Court means in its decision. The unpredictable timing of these decisions creates more public inaccessibility, as current shadow docket cases have been released late at night or early in the morning on awkward days—decreasing public awareness of the decision. The lack of merits-briefing, also known as amicus participation or oral argument, prevents affected parties from participating. The docket causes difficulties in making predictive judgments about the merits of a dispute because of the expedited process of litigation. For example, the Court can make predictions about how they can rule in cases that have not been presented to them yet.
The most severe consequence of the recent usage of the docket is how it has led to the premature and unnecessary resolution of constitutional questions in an early stage of litigation. This can be seen in the aforementioned case Roman Catholic Diocese of Brooklyn v. Cuomo (2020), where the Court used the docket to resolve a major First Amendment question about a policy that had not yet taken place, nor had the litigation had a chance to make it through the courts on the merits. [22] Regular Court procedures involve several rounds of lower-court rulings and briefings, whereas the shadow docket requires none. Another major concern is that the amount of shadow docket cases continues to rise, while the number of opinions from merit cases has decreased. All of these ramifications contribute to an undermining of the Court’s legitimacy. Ultimately, the more decisions that are unsigned, unreasoned, and partial to the politics of the moment rather than jurisprudence principles, the more deterioration occurs within the fair and balanced decision-making process that the Court ought to be upholding.
Sources
Black, Harry, and Alicia Bannon. “The Supreme Court 'Shadow Docket'.” Brennan Center for Justice. Brennan Center for Justice, July 19, 2022.
Baude, William. “Foreword: The Supreme Court’s Shadow Docket.” New York University Journal of Law and Liberty 1, no. 9. (2015): 1-47.
Cornell Law School. “Stay.” Legal Information Institute. Legal Information Institute, Last modified August 2021.
Morshedi, Mariam. “The Supreme Court's Shadow Docket.” Subscript Law, January 28, 2021.
Ibid.
Ibid.
“Reasonable Probability Definition.” Law Insider. Accessed November 26, 2022.
Ibid.
Public Information Office Supreme Court of the United States. “Reporter’s Guide to Applications Pending before the Supreme Court of the United States”. Last modified September 2022
Morshedi, Mariam. “The Supreme Court's Shadow Docket.” Subscript Law, January 28, 2021.
Ibid.
Vladeck, Stephen I. “Hearing before the Subcommittee on Courts, Intellectual Property, and the Internet of the House Committee on the Judiciary.” University of Texas School of Law, February 18, 2021.
Vladeck, Steve I. “Symposium: The Solicitor General, The Shadow Docket and the Kennedy Effect.” SCOTUSblog, October 22, 2020.
“Many of the Supreme Court's Decisions Are Reached with No Hearings or Explanation.” The Economist. The Economist Newspaper, August 26, 2021.
Cohen, David S. “The Supreme Court's 'Shadow Docket' Is Even Shadier than It Sounds.” Rolling Stone. Rolling Stone, April 10, 2022.
Morshedi, Mariam. “The Supreme Court's Shadow Docket.” Subscript Law, January 28, 2021.
and William E. Funk. “Direct Human Health Risks of Increased Atmospheric Carbon Dioxide.” Nature Sustainability 2, no. 8 (2019).
Supreme Court of the United States. “Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York.” 592 U.S. __ (2020).
Morshedi, Mariam. “The Supreme Court's Shadow Docket.” Subscript Law, January 28, 2021.
Ibid.
Whole Woman’s Health v. Austin Reeve Jackson, 594 U.S ___ (2021).
Vladeck, Stephen I. “Hearing before the Subcommittee on Courts, Intellectual Property, and the Internet of the House Committee on the Judiciary.” University of Texas School of Law, February 18, 2021.
Supreme Court of the United States. “Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York.” 592 U.S. __ (2020).