Shadow Docket

Supreme Court “Shadow Docket” Under Review by U.S. House of Representatives – American Bar Association

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.

Analysis: U.S. Supreme Court’s ‘shadow docket’ favored religion and Trump – Reuters

WASHINGTON, July 28 (Reuters) – As midnight approached on the eve of the U.S. Thanksgiving holiday, the conservative-majority Supreme Court granted emergency requests by Christian and Jewish groups challenging COVID-19 crowd restrictions imposed by New York state.

The twin 5-4 decisions in favor of the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish congregations were two of 10 decisions in the past year backing religious groups chafing under pandemic-related measures that forced them to close their doors or otherwise limit usual activities.

All 10 requests were granted via the court’s “shadow docket” in which emergency applications are decided hurriedly and sometimes late at night in a process that critics have said lacks transparency.

A Reuters analysis of emergency applications over the past 12 months offers a glimpse into the full range of parties seeking urgent relief from the top U.S. judicial body through the shadow docket. The justices have increasingly relied upon this process to make rulings in a wide array of cases without the normal deliberative process involving public oral arguments and extensive written decisions.

The analysis found that the court repeatedly favored not just religious groups – another example of the expansive view it has taken in recent years toward religious rights – but also former President Donald Trump’s administration, while denying almost 100 applications by other private individuals or groups.

Analysis: Biden’s Supreme Court losses prompt more ‘shadow docket’ scrutiny – Reuters

WASHINGTON, Aug 27 (Reuters) – President Joe Biden’s administration was dealt a double blow by the conservative-majority Supreme Court this week, raising new questions about how the justices handle cases brought via an emergency process known as the “shadow docket.”

The court in recent years has increasingly made substantive decisions on major issues via the shadow docket, deciding quickly and sometimes late at night in a process that critics from across the ideological spectrum say lacks transparency.

The administration of Biden’s Republican predecessor, President Donald Trump, did very well with the process, winning a wide majority of the cases it brought via emergency applications. Some experts attributed that to a court that has traditionally been deferential to the White House.

This week’s decisions have raised questions as to whether a Democratic president receives the same friendly reception from a court with a 6-3 conservative majority.

“What we are seeing are the consequences of a deeply conservative court, with the added travesties of the shadow docket,” said Elizabeth Wydra, president of the Constitutional Accountability Center, a liberal nonprofit based in Washington.

The US supreme court is deciding more and more cases in a secretive ‘shadow docket’ – The Guardian

These emergency rulings – short, unsigned and issued without hearing oral arguments – undermine the public’s faith in the integrity of the court

…Both of these orders last week were issued in the dead of night. Their opinions were truncated, light on the details of their legal reasoning, and unsigned. Vote counts were not issued showing how each justice decided. And despite the enormous legal and human impact that the decisions inflicted, they were the product of rushed, abbreviated proceedings. The court did not receive full briefs on these matters, heard no oral arguments and overrode the normal sequence of appellate proceedings to issue their orders.

Welcome to the “shadow docket”, the so-called emergency proceedings that now constitute the majority of the supreme court’s business. Minimally argued, rarely justified and decided without transparency, shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters. To have an issue addressed on the shadow docket, a litigant has to apply for “emergency relief” – usually to stop a decision against them from a lower court from going into effect while appeals proceed. Traditionally, applicants would need to demonstrate that they would suffer “irreparable harm” if their petition wasn’t granted immediately. So one historical use of the shadow docket has been in federal death penalty cases, where the court has used the emergency proceeding to affirm or deny requests for stays of execution.

But in recent years the court has largely dispensed with any meaningful application of the irreparable harm standard, and instead has entertained emergency relief petitions from more and more litigants, issuing shadow docket rulings on increasingly significant and controversial legal questions without the rigor or transparency that such issues demand.

Open thread.