Current Events | Bringing the Shadow Docket into the Light

On February 18, 2021, a virtual hearing in the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet considered the scope of the Supreme Court’s “shadow docket” [1]. Lawmakers and legal scholars have recently raised growing concern over the abundance and impact of the Court’s emergency and summary orders––which Professor William Baude termed “the shadow docket” in 2015 [2]. The shadow docket has gained national attention as death penalty appeals, presidential election disputes, and COVID-related cases are brought to the Court [3]. The Congressional hearing was a small but meaningful step, highlighting the necessity for greater transparency around the shadow docket to increase public confidence and ensure consistency in precedent.

The Supreme Court receives wide coverage for cases in its “merits decisions” docket, wherein Justices hear full oral arguments, go over multiple rounds of briefing, and publish signed opinions of the Court. In contrast, cases on the shadow docket are decided without oral arguments, full briefings, or written reasoning for the decision; they are often handed down late at night in “eleventh-hour” orders, and contain anonymous votes, rendering the public unaware of who, why, or how the Court made its decision [4]. 

The House Subcommittee heard from four expert witnesses on the issue: Steve Vladeck of the University of Texas School of Law, Amir Ali of the MacArthur Justice Center, Loren AliKhan, the solicitor general of the District of Columbia, and Michael Morley of Florida State University College of Law [5].

Vladeck’s testimony offered a framework for the determinants and consequences of the shadow docket [6]. While he noted the shadow docket has existed since the Supreme Court’s conception, recent use of such orders are more aggressive, more, and frequent. The growth of shadow docket cases comes at the expense of regular merits cases–––last term, for instance, the Court heard the fewest merit cases since the Civil War [7]. One reason for the shadow docket’s growth was attributed to an increase in activity from the Solicitor General under the Trump Administration; the Administration filed 41 applications for emergency relief, where the Justice Department filed eight between 2001 and 2017 [8]. The “unprecedented behavior” of the Solicitor General under the Trump Administration reveals the enabling role of the Court, and an urgent need to change the process of the shadow docket [9]. 

Amir Ali brought up a compelling case for altering the shadow docket practice by tracking its effects on execution litigation. Referencing three recent cases concerning a death row inmate’s right to have a religious advisor in the chamber, Ali illuminated the life-or-death consequences of a trilogy of unsigned, unexplained Court orders. In Dunn v. Ray (2019), respondent Domineque Ray, a Muslim death row inmate, argued he be allowed an Imam in the execution chamber; the Court vacated Ray’s stay of execution in a 5-4 decision, citing Ray’s failure to file the request in a timely manner. Despite written decisions from lower courts that argued in favor of the defendant, Ray was executed. Two months later, Patrick Murphy, a Buddhist death row inmate, raised a claim nearly identical to Ray’s, and was granted a stay of execution. The unexplained flip by the Court caused controversy among legal scholars and the public writ large. In February 2021, in another narrow 5-4 decision in Dunn v. Smith, a Christian death row inmate who argued for his right to a chaplain in the chamber was also granted a stay [10].

These three cases highlight a multiplicity of problems with the shadow docket process. The divisiveness of the Court in handing down 5-4 decisions, the anonymity of the vote in Dunn v. Smith, and the lack of legal reasoning given in the orders. The arbitrariness of the current shadow docket process was powerfully summed up by Ali: “when the Supreme Court reverses [a decision], without any explanation, a person is executed, even though the only analysis we have on the public record says the execution would violate the constitution” [11]. 

The number of legal issues affected by the shadow docket is vast and frequently amounts to “catastrophic and irreparable” consequences [12]. While many potential solutions were raised in the hearing, all rest on recognizing that Congress is not “entirely powerless to address the rise of the shadow docket” [13]. AliKhan, citing Article III of the constitution, emphasized Congress’ ability to control the Court’s exercise of appellate jurisdiction [14]. Other solutions included providing reviewing courts with “clear guidance” on standards for overruling lower decisions; encouraging Justices to provide, at minimum, a brief explanation of their orders; curtailing nationwide injunctions; and holding oral arguments in situations where the Court may alter the status quo [15]. Should Congress choose to act on these recommendations, the wide-ranging issues of the shadow docket have a chance at redress.

The hearing was the first step in improving the transparency and public access of decisions that continue to affect the nation. Rendering bipartisan consensus on both sides of the aisle, the hearing is a hopeful indicator of court reform towards a more transparent, fair, and legitimate process.

[1] U.S. Congress. House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet. The Supreme Court’s Shadow Docket. 117th Cong., 1st sess., February 18th, 2021. https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=4371

[2] William Baude, "Foreword: The Supreme Court's Shadow Docket" (University of Chicago Public Law & Legal Theory Working Paper No. 508, 2015).

[3] See South Bay United Pentecostal Church v. Newsom, No. 20A136, 2021 WL 406258 (U.S. Feb. 5, 2021), FDA v. Am. Coll. of Obstetricians & Gynecologists, 141 S. Ct. 578, 2021 WL 99362 (U.S. Jan. 12, 2021), and Dunn v. Smith, No. 20A128, 2021 WL 517473 (Supreme Court of the United States Feb. 11, 2021).

[4] William Baude, "Foreword: The Supreme Court's Shadow Docket" (University of Chicago Public Law & Legal Theory Working Paper No. 508, 2015).

[5] U.S. Congress. House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet. The Supreme Court’s Shadow Docket. 117th Cong., 1st sess., February 18th, 2021. (hereafter The Supreme Court’s Shadow Docket.)

[6] Testimony of Stephen I Vladeck in The Supreme Court’s Shadow Docket.

[7] ibid, p. 16

[8] ibid, p. 3-4

[9] Stephen I Vladeck, the Supreme Court, 2018 Term - Essay: The Solicitor General and the Shadow Docket, 133 Harvard Law Review 123 (2019). View Online

[10] Testimony of Amir Ali in The Supreme Court’s Shadow Docket.

[11] ibid.

[12] ibid, 5

[13] Testimony of Steve Vladeck in The Supreme Court’s Shadow Docket, 17

[14] Testimony of Loren AliKhan in The Supreme Court’s Shadow Docket.

[15] U.S. Congress. House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet. The Supreme Court’s Shadow Docket. 117th Cong., 1st sess., February 18th, 2021. https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=4371