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The Supreme Court ‘Shadow Docket,’ Explained

The conservative justices are increasingly using a secretive process to issue consequential decisions.

Published: July 19, 2022

In June 2022, the Supreme Court struck down Roe v. Wade, the nearly 50-year-old land­mark ruling that the Consti­tu­tion provides a right to an abor­tion. While the decision was stun­ning in its own right, many Court watch­ers say the justices signaled the death of Roe months earlier when they refused to block a Texas law prohib­it­ing abor­tions start­ing at six weeks of preg­nancy — a clear viol­a­tion of Roe.

The decision in that case, Whole Woman’s Health v. Jack­son, was shock­ing not only because it signaled a major change to the law but also in how the Court first addressed this issue: through a one-para­graph, unsigned opin­ion issued without any oral argu­ment, on the Court’s “shadow docket.”

The ruling was one of the more contro­ver­sial uses of the Supreme Court’s shadow docket, and it made clear that the justices were will­ing to use this previ­ously obscure proced­ural mech­an­ism in ways that their prede­cessors did not. For better or for worse, the shadow docket is now a signi­fic­ant part of Supreme Court juris­pru­dence.

What is the shadow docket?

Funda­ment­ally, the shadow docket is where the Court rules on proced­ural matters, such as schedul­ing and issu­ing injunc­tions. But its role is chan­ging, and the full story is more complex.

Supreme Court cases take one of two tracks: merits docket or shadow docket. Each term the Court decides some 60 to 70 cases on the merits docket. Before render­ing a ruling in each one, the Court considers numer­ous briefs and holds oral argu­ment. It then issues a decision with a lengthy opin­ion explain­ing its reas­on­ing, often with concur­rences and dissents.

The process supports both informed decision-making and trans­par­ency. Almost every Supreme Court case you can name — Brown v. Board of Educa­tion, Roe v. Wade, Citizens United v. Federal Elec­tion Commis­sion — was decided on the merits docket.

Most orders from the shadow docket, such as due dates for briefs, have little import­ance to anyone beyond the litig­at­ing parties. However, other shadow docket matters, such as requests to halt a lower court’s orders, can have high stakes. The Court might, for example, rein­state a law after a lower court had stopped its imple­ment­a­tion.

Cases on the shadow docket, in contrast to those on the merits docket, typic­ally do not receive extens­ive brief­ing or a hear­ing. The decisions are accom­pan­ied by little to no explan­a­tion and often lack clar­ity on which justices are in the major­ity or minor­ity. They are some­times released in the middle of the night, creat­ing a sense of palace intrigue.

Indeed, law professor Stephen I. Vladeck noted in testi­mony before Congress, “Owing to their unpre­dict­able timing, their lack of trans­par­ency, and their usual inscrut­ab­il­ity, these rulings come both liter­ally and figur­at­ively in the shad­ows.”

How has the use of the shadow docket changed in recent years? 

Shadow docket cases are some­times contro­ver­sial, and the Court’s hand­ling of these hot-button disputes has changed dramat­ic­ally because of a conflu­ence of events dating back to the 1980s. This change has trans­formed the shadow docket from an obscure proced­ural tool to a matter of public disagree­ment.

Through the 1970s, when a contro­ver­sial case emerged on the shadow docket, the indi­vidual justice assigned to that part of the coun­try took oral argu­ment and issued a signed order explain­ing his reas­on­ing, usually without the involve­ment of the other justices.

This process, incid­ent­ally, gave rise to one of the Court’s more bizarre stor­ies, when in 1970 two lawyers hiked six miles into the woods to request that Justice William O. Douglas tempor­ar­ily restrain Port­land, Oregon police­men from using viol­ent tactics to quell protests. Douglas held an impromptu oral argu­ment and left his decision on a tree stump: applic­a­tion denied. Supreme Court rules now require that all shadow docket applic­a­tions be submit­ted to the clerk’s office.

The Court’s treat­ment of the shadow docket began to evolve in the 1980s when the Court ceased to form­ally adjourn during the summer. With the Court tech­nic­ally in session at all times, even when the justices are not phys­ic­ally together, they can address sens­it­ive shadow docket cases in unison, instead of in their indi­vidual capa­cit­ies.

Two signi­fic­ant changes followed. First, once the justices began work­ing collect­ively on the shadow docket, they stopped hold­ing hear­ings. The reason for this is not alto­gether clear — there is noth­ing in law prohib­it­ing oral argu­ment in cases on the shadow docket, even when decided by all nine justices. Second — and this is a more recent change — the justices have begun to issue far more rulings, and more signi­fic­ant rulings, through the shadow docket. Today, the justices grant relief in conten­tious shadow docket cases twice as often as they did just a few years ago. The surge in issu­ing this relief has coin­cided with Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett join­ing the Court.

Put simply, the Court is making more signi­fic­ant decisions through the shadow docket while having reduced the robust­ness of the decision-making process.

What are some recent examples of how the Supreme Court has used the shadow docket?

The Court has used the shadow docket to rule on issues includ­ing gerry­man­der­ing, pandemic rules, envir­on­mental regu­la­tion, and (as described above) abor­tion. Many of its high profile uses of the shadow docket have involved so-called emer­gency motions, which often seek to suspend or reverse lower court orders while a case is still in progress. This is supposed to be a rare action, limited to situ­ations in which the lower court rulings could cause irre­par­able harm if allowed to stand. Crit­ics, however, argue that the Supreme Court is grant­ing relief when the applic­ant has not truly demon­strated irre­par­able harm, effect­ively decid­ing cases at too early a stage in the litig­a­tion, and with a lack of trans­par­ency and parti­cip­a­tion from affected parties.

One frequently cited example is Roman Cath­olic Diocese of Brook­lyn v. Cuomo, in which the justices struck down New York’s capa­city restric­tions on reli­gious services due to Covid-19. The Supreme Court’s inter­ven­tion revers­ing the lower courts that had allowed the restric­tions to stand appeared partic­u­larly unusual since the attend­ance limits were no longer in effect and could not cause harm.

Another example came when the justices rein­stated Alabama’s gerry­mandered Congres­sional map after lower courts had ruled that the plan discrim­in­ated against Black voters in viol­a­tion of the Voting Rights Act. The result is that those maps will be in effect for at least the 2022 elec­tion. Only two justices in the major­ity (Kavanaugh and Samuel Alito) provided any reas­ons for their decision.

Louisi­ana v. Amer­ican Rivers was another contro­ver­sial use of the shadow docket. In its waning days, the Trump admin­is­tra­tion issued a regu­la­tion prevent­ing states from block­ing infra­struc­ture projects that could contam­in­ate rivers, lakes, and streams. When a federal judge vacated the Trump rule and restored the states’ powers, the Supreme Court stepped in on behalf of fossil fuel interests, rein­stat­ing the admin­is­tra­tion’s rule without citing evid­ence or provid­ing an explan­a­tion of how the lower court order threatened irre­par­able harm.

Chief Justice John Roberts, a conser­vat­ive jurist, raised eyebrows when he joined the Supreme Court’s liber­als in dissent­ing from that ruling. In that dissent, Justice Elena Kagan lamen­ted that the Court had gone “astray,” render­ing “the Court’s emer­gency docket not for emer­gen­cies at all.” Rather, the shadow docket had become “only another place for merits determ­in­a­tions — except made without full brief­ing and argu­ment.”

Why is the Supreme Court’s current use of the shadow docket prob­lem­atic?

Using the shadow docket for none­mer­gency but monu­mental decisions runs counter to the tenets of trans­par­ency and the rule of law. As many legal schol­ars have observed, the justices’ usual process of wait­ing for lower courts to estab­lish facts and weigh in on cases, receiv­ing full brief­ing, hold­ing oral argu­ment, and provid­ing detailed explan­a­tions of their orders, is a key source of the Court’s legit­im­acy.

So, when the justices increas­ingly render decisions affect­ing more and more Amer­ic­ans in a manner that precip­it­ously resolves consti­tu­tional or stat­utory ques­tions with little to no reas­on­ing given, they feed the percep­tion that their rulings are predic­ated on polit­ical ideo­logy rather than judi­cial prin­ciples.

These orders have also sown confu­sion among lower courts as to which shadow docket decisions count as preced­ent. The Court has sent mixed signals, suggest­ing that such decisions are of little preced­en­tial value, while also rebuk­ing the Ninth Circuit Court of Appeals for not follow­ing four prior Supreme Court rulings involving Cali­for­nia Covid-19 restric­tions — all of which were shadow docket orders. Given this lack of clar­ity, judges on a federal appeals court in Virginia disagreed on what weight to give shadow docket decisions in cases involving a Trump immig­ra­tion policy.

Pres­sure from the public and legal schol­ars who have criti­cized the Court’s recent use of the shadow docket may return the justices to a more tradi­tional approach. Such a change would bene­fit the rule of law and the Supreme Court itself.