On the second day of the 2021 AJEI Summit, the AJEI hosted an informative discussion on something that has recently provoked public attention and involved high-profile rulings—the United States Supreme Court’s “shadow docket.” As someone who had not heard this term before, I was interested to learn more about what the docket is, along with the benefits and criticisms of the docket. The turnout was strong, and attendees seemed to be as intrigued as I was.
The Honorable Justice Brett Busby from the Texas Supreme Court moderated the discussion, and the panel tasked with leading the conversation consisted of Beth S. Brinkmann from Covington & Burling, LLP in Washington, D.C.; Don Cruse from the Office of Don Cruse in Austin, Texas; John P. Elwood from Arnold & Porter, LLP in Washington, D.C.; and Stephen l. Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law.
The panel stated that the Supreme Court’s “shadow docket” has been an increasingly important and visible part of the Justices’ workload. The term “shadow docket” refers to a range of rulings made in unsigned and often one-sentence orders. The panel contrasted these cases from the Court’s “merits” docket, which involves a formal grant of certiorari by the Court, the parties presenting oral arguments, and the Justices handing down an opinion.
Brinkmann explained that while the term “shadow docket” may involve different matters today, the docket itself is a not a new phenomenon. She stated that when she clerked at the Supreme Court, this docket was merely an “emergency docket,” and the Court used to grant such requests mainly in emergency death-penalty appeals. Brinkmann remarked on how the Court would not reach the merits in these cases, the cases would not be fully briefed, and the Court would have to decide on a very short time frame.
Vladeck discussed how there has been a real shift away from the emergency-based “shadow docket” Brinkmann described, which used to be dominated by death-penalty issues but also consisted of uncontroversial matters such as denying emergency relief in cases where there was no emergency, granting parties additional time to file briefs, etc. He stated the docket is now dominated by relief that is affecting far more people—such as nationwide injunctions, stays, statewide policies, and other rulings that will impact millions of people. He stated that this was not true of the Supreme Court’s previous “shadow docket” rulings.
Justice Busby noted how this type of docket and practice has been used by the Texas Supreme Court. Don Cruse, a practitioner in Texas, expanded on this and stated that the Texas Supreme Court has this type of docket and an emergency docket, which has been utilized during the COVID-19 pandemic.
Brinkmann discussed a different part of the Court’s “shadow docket,” which is when the Court decides a case on the merits after a petition is filed even though the case is not an emergency application. She stated this is an unusual situation but has been occurring. Brinkmann demonstrated this situation by distinguishing it from the process that occurs when a case is decided on the “merits” docket. She stated that, on the “merits” docket, there are two rounds of briefing because typically a petition for certiorari is filed followed by an opposition and then a reply brief. The Court will then generally discuss the case and vote, with four votes required to grant the petition for certiorari. After this, there is usually a second round of briefing. In addition, the Court usually holds oral argument where the Justices will hear argument from both parties and the argument will be open to the public with advanced notice. The Justices will then issue a reasoned and typically lengthy opinion with the decision of the case, providing the public with the Justices’ votes.
Brinkmann noted that this typical process is very different from a process that sometimes occurs on the “shadow docket.” For example, the Court, at the certiorari stage, may decide to not have the second round of briefing and will summarily reverse. Brinkmann stated this happened once to a case she was working on, and it was startling to her because there were no amicus briefs, no oral argument, and the opinion contained a short analysis. Brinkmann noted how Justice John Marshall would dissent from these summary reversal decisions because he believed it was a horrible idea as a matter of policy. Justice Marshall believed these opinions should not be decided summarily but should be briefed on the merits, and that the Court should hear argument with an opinion to follow.
The panel subsequently discussed many perspectives relating to the “shadow docket,” providing both the criticisms and benefits of the docket.
The criticisms of the docket were mainly related to the lack of transparency. The orders often lack reasoning because they consist of one or two sentences, without explanation, and happen faster and with less predictability. The orders typically do not identify how the Justices voted and can be issued at any time of the day, including in the middle of the night.
The panel noted how the lack of predictability is difficult because the orders issued from the “shadow docket” have recently been related to very important cases. The panel discussed several important cases where the Court granted stays and injunctions that were very debatable yet failed to provide any reasoning or explanation, resulting in significant yet mysterious orders. The Court often does not provide its legal basis for these decisions, leaving litigants to guess why the Court decided one way or another. In addition, often the Court will leave these orders unsigned, which leaves the public guessing which Justices agreed or disagreed with the decision. This is different from the Court’s merits docket, where the public knows in advance which cases the Court will decide, know the results of the decision with a reasoned opinion, and know how the Justices voted on the matter.
One of Vladeck’s biggest concerns with rulings from the “shadow docket” is that the Supreme Court is beginning to treat some of these “unexplained and unsigned orders” as precedential.
While transparency appears to be an issue, the panel noted the necessity of the “shadow docket” at times. The Supreme Court is like other appellate courts in that sometimes, the Court will need a mechanism to provide emergency relief on an urgent schedule pending appeal—which seems to be the reason the “shadow docket” used to exist. Further, it may be not be possible for the Court to handle such emergency orders in a different manner. The orders, especially during the COVID-19 pandemic, sometimes respond to unexpected or unusual developments in a case, and the nature of the unexpected is that it is difficult to prepare for it in advance. During the pandemic, we have seen situations evolve and change daily, which sometimes requires the Court to issue orders based on the Court’s discretion. Because of the time constraints on some of these orders, the Justices may not be able to explain their reasoning. Additionally, the nature of relief sought in some cases—particularly those requesting stays, injunctions, and emergency relief—can be time sensitive. If the Court were to wait for the entire certiorari, argument, and merits process to play out, then the case would become moot or irreparable harm would have occurred before a decision is rendered.
The panel provided recent examples of uses of the “shadow docket,” which included several high-profile rulings arising from: the wave of pandemic-related issues about the eviction moratorium, the wave of state restrictions on religious gatherings during the pandemic, and the Texas abortion case regarding SB 8.
One of the key takeaways from the panel’s discussion was that the Court’s “shadow docket” has evolved, become more prominent, and appears to have provoked more public attention. Some of the panel members argued that this docket deserves attention and possibly reform. Although the orders issue in non-merits cases, some panel members argued they should still require consistency and transparency, while also sometimes requiring more time to be decided because of the amount of people affected and constitutional rights involved.