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.

The Roberts Court’s use of the shadow docket precludes any form of transparency in consequential and potentially controversial decisions. Nine justices sitting for life, unaccountable to voters, have a compounded obligation to deliberate and decide high-stakes cases with thorough explanation. A review of the practice’s history, its proliferation, and on the ground impacts makes it clear: the shadow docket cannot continue. The public should demand sunlight in their shady high court.

A Shadowed Use

William Baude, a University of Chicago law professor, coined the term shadow docket, “a range of orders and summary decisions that defy [the court’s] normal procedural regularity,” in a widely read 2015 law review article.

But the practice has existed for generations. Any case the court decides outside of its regular caseload (their “merits docket”), which includes oral argument and lengthy signed opinions, is considered part of the shadow docket. As University of Texas law professor Stephen Vladeck explains in Slate:

What’s new (and alarming) is not the shadow docket itself; it is the extent to which the justices are using it more and more often to issue significant rulings that change the rights and responsibilities of millions of Americans, all without the daylight (including multiple rounds of briefing, oral argument, and lengthy opinions setting out principled reasons for the decision) that comes with plenary review.

The court’s use of the shadow docket, according to Vladeck, has received scrutiny in scattered cases throughout modern history. “From the execution of the Rosenbergs to Justice Douglas halting Nixon’s bombing of Cambodia to the stay of the Florida recount in what became Bush v. Gore, there certainly have been significant rulings on the shadow docket across the court’s modern history,” Vladeck told a hearing before a House subcommittee on courts.

Save for a handful of cases, there has been a lull in both practice and attention in the shadow docket. That is, until the Roberts Court met the Trump administration.

“Granting a stay pending appeal should be an ‘extraordinary’ act,” Justice Sonia Sotomayor wrote, using a technical explanation to denounce her conservative colleagues’ use of the shadow docket.

Sotomayor’s scathing dissent came in September 2019 after the court blocked a large share of Central American migrants from the asylum process. What the conservatives were doing, she effectively wrote, isn’t normal. In fact, their activity amounted to the abuse of what should be a decidedly infrequent practice, in service of the right-wing agenda.

There is data to back up the dissent. Only eight applications for emergency relief — a step that often leads a case to the shadow docket — were filed by the Department of Justice between 2001 and 2017, according to the American Bar Association. The Trump administration filed forty-one such applications in just four years.

Donald Trump is out of office, but the court’s increased reliance on the shadow docket in consequential cases has continued. The Left has to deal not only with a six to three liberal deficit on the court but a near total information deficit when it comes to certain consequential rulings.

Dark Consequences

There is no one reason for the court’s increasing use of the shadow docket. Perhaps, with renewed scrutiny following a Republican-led takeover of the bench, certain members of the court want to obscure less popular rulings. Controversy, after all, often begets questions of legitimacy — and legitimacy is the only defense of the court’s supremacy. With the shadow docket, rulings are out of sight and out of the public’s mind.

But the explanation for its use is less important than the effects of the abuse of the shadow docket. As it turns out, the shaded actions have stark on the ground impacts — often at the expense of marginalized groups.

Take, for example, a nightmarish California jail at the beginning of the coronavirus pandemic. More than three hundred residents tested positive. Detainees were “packed into day rooms sharing the same air and bathrooms without social distancing” and inmates were given “watered-down disinfectant and makeshift masks made from bloodstained sheets.”

After a district court judge ordered an injunction that required officials at the Orange County Jail to implement precautionary health measures, jail officials filed an emergency application asking the Supreme Court to lift the injunction — effectively ending the mandate to safeguard the inmates’ lives. By a five to four vote in summer 2020, the Supreme Court gave them the go-ahead; their order was unsigned and delivered without explanation.

In the most recent case, black voters in Wisconsin — where, as the Times notes, “maps have for the last decade been among the most gerrymandered in the nation” — were denied an electoral district which would have strengthened their political power in the state assembly. The majority justices, none of whom signed their names, took issue with interpretation of the court’s precedent surrounding the Voting Rights Act (VRA) and racial gerrymandering.

As Rick Hansen, an election law expert, wrote after the decision was handed down:

This ruling is bizarre on many levels, all canvassed by the dissenting opinion. The state supreme court did not purport to do a full VRA analysis: it was adopting maps, and those maps could have been challenged later on VRA or equal protection grounds. In reaching this decision, the Supreme Court majority resolved some uncertain issues of statutory and constitutional interpretation. The Court did so on skimpy briefing with no oral argument or a chance to fully consider the issues, treating the stay request as a cert petition and deciding the full case on the merits.

There is significant risk in letting the trend persist. “If [the justices] can make significant decisions without giving any reasons, then there’s really no limit to what they can do,” David Cole, legal director of the American Civil Liberties Union, told Reuters. “It’s hard for the public to know what is going on, and it’s hard for the public to trust that the court is doing its best work,” added Baude, the law professor who coined the phrase “shadow docket.”

It is not hard to imagine the public outcry if a governmental body like Congress engaged in this behavior. Say the House of Representatives and the Senate were to pass a bill, one affecting scores of people, all without deliberation and a tally of who voted and how. Constituents would rightly be outraged.

This is, in effect, what the court is doing. Had the aforementioned cases been conducted with both procedural regularity and public accessibility, perhaps the justices would have ruled for the incarcerated people in a coronavirus-infested jail. Perhaps the nine would have thought twice about limiting the political power of black people amid a growing assault on voting rights.

A Sunlit Reform

Advocates of curbing the abuse of the shadow docket laid out a laundry list of reforms in a House Judiciary Committee hearing on the issue last year. Vladeck suggested taking “pressure off the shadow docket,” allowing the court to take up time-sensitive issues under ordinary methods (briefing, oral argument, and a signed opinion). Vladeck explained that Congress could “mandate special appellate procedures that would allow faster and smoother adjudication of certain types of cases.”

Amir Ali, the deputy director of the Supreme Court and Appellate Program at the MacArthur Justice Center, mentioned the use of the shadow docket in the death penalty; he suggested that Congress could mandate a higher standard for the Supreme Court to overrule lower-court decisions that put executions on hold.

Another way to get rid of the shadow docket: get rid of the court itself. As Keeanga-Yamahtta Taylor, a professor of African American studies at Princeton, writes in a piece headlined “The Case for Ending the Supreme Court as We Know It”: “Why should the Supreme Court, an unelected body that is richer, whiter, and more male than the United States is, continue to have such outsized power in the lives of ordinary people?” The shadow docket only adds urgency to her question.

The Roberts Court has turned the shadow docket from a bug to a feature. While the measure was once used infrequently as a possible expedient, it is now routinely capitalized on by conservative jurists to advance ideological interests without explanation.

A critique of the judiciary is now mainstream, with some members of Congress expressing genuine interest in reforming the court. The calls from prominent politicians add institutional and rhetorical oomph behind the once sidelined demand for a systemic reorganization of the highest court. Failing to include the shadow docket on the list of judicial grievances would be a mistake.