The Supreme Court’s Abuses of the Shadow Docket Must Be Stopped
The Supreme Court has always been a wildly undemocratic institution. But its flagrant abuse of the shadow docket, in which the court’s decisions on key issues are made with zero transparency or explanation, takes it to a whole other level.
Supreme Court justices (L–R) Amy Coney Barrett, John Roberts, Brett M. Kavanaugh, and Stephen G. Breyer attend the State of the Union address on March 1, 2022. (Saul Loeb / Pool via Getty Images)
They often come in the middle of the night — unsigned and without explanation. Some sentence people to death. Others adversely impact the political power of minority groups. They make up the shadow docket, a set of Supreme Court cases decided without traditional brief, oral argument, or signed opinion.
The Roberts Court has made a habit of abusing the legal mechanism. Under the cover of obscure hours and scant national attention, the justices have green-lit prison executions, curbed voting rights, and tossed aside public health precautions meant to address a raging coronavirus pandemic.
If the court continues on its current trajectory — and given a recent unsigned ruling throwing out an electoral map that favored black voters, it probably will — the misuse of the shadow docket is here to stay.
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