The Supreme Court and 'The Shadow Docket'

The title sounds more like a thriller than a legal treatise. The Shadow Docket: How the Supreme Court uses stealth rulings to amass power and undermine the republic" — and the author, University of Texas law professor Stephen Vladeck, admits the term "shadow docket" is evocative.

Vladeck's book, written so it can be understood by the interested non-lawyer, focuses on a part of the court's work that until six or seven years was mainly viewed as pretty boring. That, however is no longer true, and today the emergency docket has come to be known as the shadow docket, a term coined in 2015 by University of Chicago law professor William Baude.

Justice Samuel Alito hates the term, and gave an hour-long speech in 2021 at Notre Dame, suggesting that journalists and politicians have seized on it to wrongly portray the court as "sneaky," "sinister," and "dangerous."

Nonetheless the term has stuck.

Professor Vladeck argues that the court has only itself to blame.

"What impelled me to write the book is that over the last six years, we've seen the shadow docket become a lot less boring because the Supreme Court, and especially the conservative majority, has been using unsigned and unexplained orders to a degree and in ways which really have no precedent in the court's history," he said in an interview with NPR.

What is the shadow docket?

The shadow, or emergency, docket, is the way many cases today, sometimes hugely consequential cases, are decided, without full briefing or oral argument, and without any written opinion.

These cases are brought to the court by a state, or a company, or a person who has lost in the lower courts, often at an early stage, and that loser is now asking the Supreme Court to block the lower court order while the case proceeds through the lower court appeals process, which typically takes many months. Most recently, the Supreme Court issued an emergency order blocking lower court decrees that would have made it far more difficult to obtain mifepristone, the pill used in the majority of abortions in the United States today. As is typical in these shadow docket cases, the court issued no written opinion in the case, though Justice Alito, one of the two dissenters, issued an angry explanation for his disagreement with the majority.

Up until relatively recently, these shadow docket actions were quite rare. The statistics tell the story, statistics compiled by Vladeck. During the 16 years of the Bush and Obama administrations, the federal government, the most frequent litigant in the Supreme Court, only asked the justices for emergency relief eight times--or on average once every two years. The two administrations together got what they wanted in only four of the eight cases, and in all but one of them the court spoke with one voice, and no dissent.

But in the Trump administration, and with a newly energized conservative majority on the court, the picture changed dramatically. In just four years, the Trump Justice Department asked the court for emergency relief an astounding 41 times, and the court actually granted all or part of those requests in 28 of the cases.

In short, not only did the Trump administration aggressively seek to use the emergency docket, often leapfrogging over appeals courts entirely, but it succeeded with the tactic.

'The dirty secret'

Vladeck cites, for example, the challenge to President Trump's controversial diversion of military construction funds to build his border wall. A federal district court judge, after hearing the case, ruled that the diversion was unconstitutional, and barred the administration from using the money for a different use than Congress authorized. Within weeks the Trump administration went to the Supreme Court with an emergency appeal to block the lower court order, and the justices restored the money diversion by a 5-to-4 vote, with no written opinion for either the majority or dissent. As professor Vladeck explains, these emergency rulings are supposed to be temporary, to allow the cases to play out through the appeals process in the lower courts, and then possibly to return for full consideration by the Supreme Court later.

But "the dirty secret is that later never comes," he says. "By the time the border wall case," or "all kinds of other challenges to Trump policies make their way back to the Supreme Court, at the far end of the normal litigation process, President Biden is in office and those policies have been discontinued, and the cases are thrown out."

That pattern, he says, was repeated over and over again, thus allowing Trump "to carry out policies that lower courts had held to be unlawful because the Supreme Court, through unsigned and unexplained orders" said, in effect, 'Go ahead President Trump, we'll deal with this later.'"

Vladeck's point is not that the Supreme Court was necessarily wrong, but that its unexplained shadow docket rulings today are both "inscrutable, and inconsistent." The patterns that emerge, he maintains, put the court in an "exceptionally unflattering light."

"The more you look at the body of work, the more it looks like the best explanation for when the court is intervening and when it's not, is partisan politics and not neutral substantive legal principles," he contends.

No opinions to analyze

Vladeck points to a speech Justice Amy Coney Barrett gave in 2021, in which she assured the audience that the current court "is not composed of partisan hacks" and urged people to "read the opinions." But as Vladeck observes,
"What's remarkable about the shadow docket is that so often the court is handing down rulings with massive impacts in which there's no opinion to read."

Vladeck argues that historically, the way the Supreme Court has conceived of its own legitimacy and its own moral authority is its ability to provide principled rationales for its decision-making.

"We may not agree with the specific principles the justices are articulating" in major abortion or gun rights cases," he says, citing two examples. But at least we have some sense that these decisions are based on legal principles. In contrast, he argues, "The shadow docket has none of that."

Vladeck agrees there are times when the court quite legitimately must use the emergency docket to deal with emergency situations--the classic one being a last-minute appeal to stop an execution, or the series of cases involving the Trump travel ban, or the mifepristone cases. But he notes that even conservative Chief Justice John Roberts has sounded the alarm about such frequent use the shadow docket.

For instance, in an Alabama redistricting case where Roberts, no fan of the Voting Rights Act, might ultimately side with the state, he wrote that the lower court had properly ruled on the law as it exists today; he was thus unwilling to grant an emergency order overturning the unanimous lower court decision. He instead joined the Supreme Court's three liberals in dissent. In that sense, says Vladeck, Roberts is the "canary in the coal mine."

Vladeck points out that Congress is not without power when it comes to such matters. For the first 200 years of the Supreme Court's existence, Congress played an active role in the shape and size of the court's docket, including how the court would handle emergency cases.

"I think the story here is one where Congress progressively got out of the business of checking the court and the court progressively got out of the business of wanting to be checked," he says.

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