The Supreme Court of the United States in Washington, DC.
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The Supreme Court makes nearly all its decisions on the emergency relief docket or “shadow docket.”
The conservative court has increasingly expanded its shadow docket powers in recent years.
Steve Vladeck, the author of a new book on the shadow docket, spoke to Insider about its dangers.
The US Supreme Court routinely dominates headlines and dinner conversations alike with announcements of its far-reaching legal opinions each spring. But the buzzy affirmative action and student loan decisions of late make up only a fraction of the top court’s actual caseload.
The majority of the court’s rulings come not on the merits docket — the list of cases that receive oral arguments and are resolved with written opinions — but on the court’s “shadow docket,” where supposedly temporary emergency rulings are increasingly being implemented as the law of the land with little legal explanation from the life-appointed justices.
Nearly 99% of the Supreme Court’s decisions during the October 2020 session, in fact, were made on the emergency docket, which allows the justices to dole out appeals, stays, injunctions, and denials without ever publicly noting their votes, said law professor Steve Vladeck in his new book, The Shadow Docket: How the Supreme Court uses stealth rulings to amass power and undermine the republic.”
The court’s use of this cryptic process has skyrocketed in recent years as the justices take advantage of the shadow docket in more consistent and concerning ways, Vladeck argues in his book.
The justice’s individual ethics scandals have captured the nation’s attention in recent months, but it is the court’s outsized technical powers that pose a greater danger to the country’s waning trust in the institution, Vladeck said in a call with Insider.
“My hope is that the more the public understands just how much power the justices have to set not just their agenda, but ours, the more we can build a consensus about how that power ought to be reigned in,” Vladeck said.
What is the Supreme Court “shadow docket?”
The court’s emergency docket is where justices make quick decisions to address emergency relief requests and other procedural matters. Most recently, the justices used the shadow docket to ensure the abortion bill mifepristone could still be purchased and used in the US. But the vast majority of orders that reach the emergency docket are of little interest to the general public.
“The shadow docket itself has been part of the court’s work for a long time, and its output has historically been almost entirely uncontroversial,” Vladeck writes.
First created to help the justices manage their burgeoning caseload, the Supreme Court’s emergency docket — now known colloquially as the shadow docket, thanks to a clever turn of phrase by University of Chicago law professor William Baude in 2015 — was for decades an oft-used, little-known component of the court’s work.
The modern shadow docket is home to cases brought by a legal party, be it a state, individual, or the federal government itself, when they have lost a ruling in the lower courts process and then elevate the case to the Supreme Court, asking the top justices to block the lower court’s initial order while the case proceeds through the appeals process.
The court’s use of this legally complex process first started to rise in the 1970s and 80s amid a spur of death penalty cases that, given the life or death stakes at play, often required immediate, emergency intervention from the Supreme Court, Vladeck writes.
Emergency docket decisions were historically meant to offer a temporary pause as the case played out in lower courts, but the modern Supreme Court has increasingly used the shadow docket to implement final and far-reaching laws, Vladeck said.
Decisions on the shadow docket are neither preceded by the standard oral arguments we typically associate with the Supreme Court, nor accompanied by a written decision explaining the justice’s legal thought process, exemplifying the symbolic “shadows” where these decisions are made.
Capitol Police watch an abortion-rights rally from behind the security fence surrounding the Supreme Court on June 23, 2022.
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The court’s use of the shadow docket has recently skyrocketed
The Supreme Court ramped up the frequency of its shadow docket decisions in recent years and is increasingly redefining how those decisions should be implemented, essentially shaping the legal letter of the law through emergency orders that come “unseen, unsigned, and almost always unexplained,” Vladeck writes.
In other words, the Supreme Court is expanding its power while limiting the public’s understanding of their process, Vladeck said.
But it’s only since Justice Ruth Bader Ginsburg died in 2020 that the court’s conservative bloc was cemented and shadow docket decisions started being regularly applied not only to the emergency case in question, but throughout courts across the country.
Perhaps the most impactful shadow docket cause and effect, Vladeck argues, can be traced back to a September 2021 unsigned decision by the Supreme Court not to stop Texas’ six-week “heartbeat” abortion ban that violated Roe v. Wade. Less than a year later, the court would overturn Roe, wiping out fifty years of abortion precedence along with it.
The court’s conservative majority, Vladeck writes, became particularly fond of issuing unsigned decisions during the religious freedom cases that arose during the COVID-19 pandemic and the voting rights issues spurred by the 2020 election.
“The court’s new conservative majority has used obscure procedural orders to shift American jurisprudence definitively to the right,” Vladeck writes.
During the combined 16 years of the Obama and Bush presidencies, the two administrations asked for emergency relief from the Supreme Court just eight times total and were granted it four times. The Trump administration, meanwhile, asked for emergency relief a whopping 41 times and got its way 28 times.
“The conclusion is all but inescapable that the Court was just as responsible for enabling the rise of the shadow docket as the Trump administration — and that it did so in a manner that specifically tended to advance Republican policies rather than conservative legal principles,” Vladeck writes.
Nadine Seiler attends a rally for voting rights while the U.S. Supreme Court hears oral arguments in the Moore v. Harper case December 7, 2022.
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Public trust in the Supreme Court is at a historic low
Shadow docket decisions don’t require justices to note which way they actually voted, leading to the ever-present possibility of stealth dissenters and muddying the public’s understanding of how the nine justices came to their decisions. Without written explanations, these legal decisions offer no guidance or roadmap for how states and lower courts can and should implement new precedent.
“One of the problems the shadow docket magnifies is just how much power the court is able to wield in a context with no explanation,” Vladeck told Insider.
Shadow docket decisions can come down at any time and are typically posted to one of several possible web pages often in the late hours of the night or early in the morning, making them difficult to anticipate and track. The court’s increasing use of the shadow docket appears to have hardened ideological lines among the justices, as well, with more frequent 5-4 decisions made on emergency matters in recent years, Vladeck writes.
The decisions made on the shadow docket are not inherently biased, Vladeck said, but the lack of transparency stokes legitimate concerns about the court’s politicization and polarization, especially as the public’s trust in the institution reaches an all-time low.
“Even judges and justices acting in good faith can leave the impression that their decisions are motivated by bias or bad faith — which is why judicial ethics standards, even those few that apply to the Supreme Court itself, worry about both bias and the appearance thereof,” Vladeck writes.
The dangers posed by the shadow docket are more perilous than the wrongs of individual justices, Vladeck argues, because the shadow docket’s ills are inherently institutional.
“If we look at the court as a sum total of its merits docket decisions, it will just sort us into our normal camps and never the two shall meet,” Vladeck told Insider. “The more we talk about the court as an institution and how it exercises power and hands down rulings that affect us, maybe there is more opportunity for consensus about where things have gone awry.”