The Rise of the SCOTUS "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.

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.

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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."