April 15, 2021 Supreme Court

Supreme Court “Shadow Docket” Under Review by U.S. House of Representatives

By Samantha O'Connell, DPRP Intern

First coined in 2015 by law professor William Baude, the term “shadow docket” refers to the thousands of decisions the Supreme Court hands down each term that “defy its normal procedural regularity.” Unlike the 60-70 cases the Justices hear on the “merits” docket, where the Court receives full briefings, hears oral arguments, and delivers lengthy, signed opinions, cases decided by way of the “shadow docket” lack such public deliberation and transparency. According to Court watchers and analysts, increasingly often in recent years, the Justices are handing down one- or two-sentence summary decisions late at night in controversial cases like those involving the recent federal executions. These shadow docket orders often do not include information about how each Justice voted or why the majority came to a certain conclusion, potentially leaving lower courts in the dark about how to apply Supreme Court precedent moving forward. In the case of the federal death penalty cases, the government often relied on these unsigned emergency orders from SCOTUS, typically handed down the night of the scheduled execution, to clear away any remaining legal barriers preventing the execution from moving forward. Recognizing this recent shift in Supreme Court practice, on February 18th, 2021, the House Judiciary Committee held a hearing on the shadow docket, listening to legal experts explain the history of the practice, why Congress should be concerned when SCOTUS doesn’t “show its work,” and suggestions for reform. While every Democrat who participated in the hearing seemingly expressed concern over the shadow docket, various Republican lawmakers also criticized this recent trend. 

The shadow docket, using Baude’s definition, has existed since the very formation of the U.S. Supreme Court. As Stephen Vladeck, professor at University of Texas Law School, explained in his testimony at the hearing, this legal approach to resolving cases was typically reserved for denials of uncontroversial petitions for certiorari, denying emergency relief applications for cases that clearly didn’t meet the “emergency” criteria, granting parties more time to file briefs, and other typically unremarkable scenarios. To seek emergency relief from the Court on the shadow docket and thus side-step the formal appeals process, an applicant must prove that they will suffer “irreparable harm” if their request is not immediately granted. While only eight such applications for emergency relief were filed by the Department of Justice between 2001 and 2017, the Trump administration filed 41 such applications in just four years. Not only has the size of the shadow docket grown considerably as a result, but the types of cases the Supreme Court has been deciding via this emergency relief method have changed as well. The Court has begun resolving politically-charged disputes over the border wall, COVID-19 safety restrictions, and federal executions using the once “anodyne” shadow docket. 

The rise of the shadow docket has had an immense impact on capital litigation since July 2020, when the DOJ officially restarted federal executions for the first time in 17 years. Throughout the execution spree, the Supreme Court repeatedly vacated stays and injunctions put in place by lower courts via unsigned orders issued in the middle of the night, clearing the way for the executions of Dustin Higgs, Lisa Montgomery, Wesley Purkey, Dustin Honken, Keith Nelson, and Daniel Lewis Lee. As the Court vacated the injunction staying Dustin Higgs’ execution via unsigned order, both Justice Sotomayer and Justice Breyer issued public dissents in large part lambasting the Court’s hasty treatment of the federal execution cases up until that point. 

These dissents demonstrated another troubling trend that Vladeck identified during the hearing: of the eight emergency relief applications filed by the Bush and Obama administrations between 2001 and 2017, only one resulted in a public dissent; but of the 36 heard under the Trump administration, 27 applications resulted in such dissenting opinions, demonstrating the more polarizing nature of recent shadow docket decisions even amongst the Justices themselves.  

Democrat and Chairman of the House Judiciary subcommittee on courts, intellectual property, and the internet Rep. Hank Johnson argued, “Knowing 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 confusion and lack of accountability that results from unsigned orders also stuck out to some Republican representatives at the February 18th hearing. Texas Rep. Louie Gohmert, for instance, stated, “I am a fan of judges and justices making clear who is making decisions,” and in response to Democratic Rep. Ted Lieu’s question to Stephen Vladeck about whether Congress could legally require Justices to sign all of their opinions, Gohmert claimed, “I think Congress does have authority to require such a thing.” Republican Rep. Darrell Issa of California even suggested that members of Congress select the most significant recent shadow-docket rulings and write bipartisan letters to the Court, requesting that their votes and rationale behind the decisions be made public. 

As the shadow docket has risen in prominence, it seems the merits docket has also shrunk, with the Court handing down only 53 merit decisions in its October 2019 term, the fewest since the Civil War. Though the pandemic did result in the postponing of ten oral arguments throughout 2020, the Court is still on pace to hand down only 56 merits opinions this term without such delays, implying that “the shadow docket appears to be increasingly competing with the merits cases for the Justices’ attention,” said Vladeck. Taking the “pressure off the shadow docket” and incentivizing the Justices to return their attention to the more deliberate, drawn-out procedures of the merits docket could be the key to reigning in the massive uptick in unsigned emergency orders, Vladeck explained to the committee. 

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