User:Jaydavidmartin/Shadow docket

In United States Supreme Court procedure, the shadow docket refers to decisions handed down by the Supreme Court that defy normal procedural regularity, when it believes an applicant will suffer "irreparable harm" if their request is not immediately granted. These decisions are generally terse (often only a few sentences), unsigned, and are preceded by little to no oral arguments (as is ordinarily the case). Historically, the shadow docket was used only rarely for rulings of serious legal or political significance, but since 2017 it has been increasingly utilized for consequential rulings, especially for requests of emergency stays of lower-court rulings by the Department of Justice.

The shadow docket is a break from ordinary procedure. Whereas cases on the ordinary docket (officially the "merits docket") typically involve months of oral argument and result in a lengthy opinion from the majority, shadow docket cases receive only very limited briefings, rarely feature oral arguments, are typically decided about a week after an application is filed, and generally result in a very brief unsigned ruling that does not include the legal reasoning of the majority. While shadow docket decisions can have major policy implications, because they are almost always released without the legal reasoning of the majority they have less impact on legal doctrine than ordinary decisions.

The term "shadow docket" was coined in 2015 by University of Chicago law professor William Baude.

Background

In the Supreme Court's ordinary proceedings, cases proceed along the "merits docket". Cases are accepted onto the merits docket if four justices decide to grant review (the overwhelming majority are denied). Accepted cases then features full briefings (including from outside parties) and oral arguments generally lasting weeks or months. Finally, the Court issues a lengthy, signed majority opinion, in which the majority extensively explains its reasoning for the ruling.

Procedure

According to Reuters,

To get on the shadow docket, any litigant can apply to a single justice, who decides whether to forward the dispute to the full court. Five votes among the nine justices are needed to grant a request. No oral arguments are made but opposing attorneys can file briefs in opposition. To be granted, the request must meet certain criteria, including that the applicants would suffer "irreparable harm" if it is not granted.

History

Historically, the shadow docket was used primarily for issuing anodyne orders (e.g. giving parties more time to file a brief or extending oral arguments). However, it has, on rare occasions, been used for rulings of significant consequence, e.g. a 1953 stay of the executions of Julius and Ethel Rosenberg and an emergency injunction temporarily halting the Nixon Administration's bombing of Cambodia.

Starting in 2017, use of the shadow docket for important rulings increased precipitously. This coincided with the presidency of Donald Trump, when the Trump administration sought emergency relief (generally to stay lower court rulings against its executive actions) from the Supreme Court at a far higher rate than had previous administrations, filing 41 emergency applications over Trump's 4 years in office (by comparison, over the prior 16 years the Obama Administration and the Bush Administration together filed only 8 emergency applications). Rulings made by way of the shadow docket during Trump's term included rulings over the Trump travel ban, the diversion of military funds to the construction of additional border wall on the U.S.-Mexico border, the prohibition of transgender people from openly serving in the United States military, use of the federal death penalty, and restrictions on asylum seekers from Central America. In 21 of 48 cases, the Supreme Court granted the Trump Administration's requests.

Criticism

A number of legal experts have voiced criticism of the shadow docket. Much criticism has been directed at the lack of transparency with the shadow docket. William Baude, a law professor at the University of Chicago School of Law who coined the term "shadow docket", has argued that the shadow docket makes it "hard for the public to know what is going on" and makes it "hard for the public to trust that the court is doing its best work". Similarly, Chairman of the House Judiciary subcommittee on courts, intellectual property, and the internet Rep. Hank Johnson contended that "[k]nowing why the Justices selected certain cases, how each of them voted, and their reasoning is indispensable to the public's trust in the court's integrity." The Economist, an influential newspaper, has argued that the shadow docket displays a "deficit of transparency and accountability", while Stephen I. Vladeck, a professor at the University of Texas School of Law, has criticized how decisions are "handed down at all hours of the day...with little opportunity for public involvement or scrutiny." Vladeck has argued that, "[f]or a Court whose legitimacy depends largely on the public's perception of its integrity, the growth of unseen, unsigned, and unexplained decisions that disrupt life for millions of Americans can only be a bad thing—and is reason enough for the Court to bring more of these rulings out of the proverbial and literal shadows."

The shadow docket has also been criticized for its lack of rigor. Vladeck has argued that the shadow docket "put[s] the justices in the position of deciding weighty legal issues at a very early stage of litigation, in a context in which it is often unclear exactly what the relevant facts are and in which legal arguments have not been fully developed." Similarly, Shoba Sivaprasad Wadhia, a professor and associate dean at Penn State Law, has stated that "it’s hard to imagine that [the justices] have the same deliberation or time to think about the varying arguments by each party."

Critics also contend that the shadow docket gives the Supreme Court an unreasonable amount of power. Nicholas Stephanopoulos, a law professor at Harvard University, has argued that the "idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about...If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions." Ian Millhiser, a journalist at Vox who covers the Supreme Court, has relatedly argued that requiring "reasoned opinions" with rulings "can be a tremendous check on judicial power", but "if the Supreme Court pushes too many of its decisions onto its shadow docket, the justices in the majority may never figure out that their first instinct regarding how to decide a case was flawed."

Other criticism has been directed at the significant uptick in the use of the shadow docket. Vladeck, for instance, has lambasted the increased use of the shadow docket since 2017. Writing in the New York Times, he argued:

Until this term, it would have been unheard-of to articulate a new constitutional rule while issuing an emergency injunction to enforce it...A majority of the justices are increasingly using procedural tools meant to help them control their docket to make significant substantive changes in the law, in defiance not only of their own standards for such relief, but of fundamental principles of judicial decision making.

David Cole, the national legal director of the American Civil Liberties Union and a professor at Georgetown University Law Center, has similarly argued that "relief should be restricted to the most egregious cases truly requiring expedited action, yet it is increasingly being applied to run-of-the-mill disputes."

See also

• Procedures of the Supreme Court of the United States
• History of the Supreme Court of the United States

External links

• 2015 Paper in which University of Chicago law professor William Baude coined the term "shadow docket": Foreword: The Supreme Court's Shadow Docket