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Supreme Court's 'Shadow Docket' Is Under Scrutiny

Justices are increasingly deciding weighty matters with quick, unsigned rulings
By John Johnson,  Newser Staff
Posted Sep 3, 2021 10:08 AM CDT
Old Tactic, New Controversy: The Court's 'Shadow Docket'
The Supreme Court is seen in Washington.   (AP Photo/J. Scott Applewhite, File)

(Newser) – The Supreme Court made what could be one of its most consequential decisions in years this week by allowing Texas' restrictive abortion law to stand. But those interested in the reasoning of the five majority justices are out of luck. The court issued the unsigned ruling through what's commonly known as its "shadow docket," meaning the justices acted quickly, without oral arguments or lengthy deliberations, and did not provide the usual explanation for the decision. The increased use of the tactic of late is drawing attention—and plenty of criticism.

  • The tradition: The shadow docket has been typically used for emergency matters such as stays of execution, when the court must move fast. "There's nothing inherently sinister about that," writes Adam Serwer at the Atlantic. But he notes that over the past few years, particularly in the Trump administration, the court has used the tactic more and more to make "major changes to American law without the scrutiny or attention that comes with holding oral arguments or writing major opinions."

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  • Kagan's beef: In her dissent on the Texas decision, Elena Kagan spoke out against the practice. "The majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend," she wrote, per Bloomberg.
  • Immigration, etc: Before the Texas case, the court has used the shadow docket recently on everything from immigration to voting laws to pandemic-related laws, notes the New York Times, and almost always with the conservative majority holding sway. The analysis by Charlie Savage suggests one reason is that lower courts appear to be more willing than ever to issue opinions that apply to the entire country in politically volatile cases. The government then files an emergency appeal, which puts the case in the Supreme Court's hands.
  • The politics: University of Texas law professor Stephen Vladek tells the Atlantic that the Trump administration sought 41 "emergency relief" rulings from the court—ie, under the shadow docket—compared to a total of eight total under the Obama and Bush administrations. Trump almost always won, and the tilt toward shadow docket rulings that favor conservatives has continued under the Biden administration.
  • The politics, II: Democratic Rep. Jerrold Nadler, chair of the House Judiciary Committee, had this to say after the Texas decision: “Because the court has now shown repressive state legislatures how to game the system, the House Judiciary Committee will hold hearings to shine a light on the Supreme Court’s dangerous and cowardly use of the shadow docket."
  • From both sides: There is "no avoiding the sense that the justices had abdicated some responsibility," writes analyst Joan Biskupic at CNN. NYU law professor Melissa Murray tells the Atlantic: “I think it’s clear that it has become a shadowy way to effect substantive decisions in cases where the Court, in the light of day, would be more reluctant to move aggressively.” The Times notes that criticism isn't only from the left and/or center, with conservative justice Neil Gorsuch faulting the rushed process in an immigration ruling that went former President Trump's way last year.
(Read more US Supreme Court stories.)

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