APRIL 12, 20216:09 PM
Over the past few years, a growing chorus of law professors, Supreme Court practitioners, and legal journalists have been writing about—and criticizing—the rise of the Supreme Court’s “shadow docket,” using a term coined by University of Chicago law professor Will Baude in 2015 to describe rulings by the justices that come through unsigned (and often one-sentence) orders. As I explained for Slate last August, although the Supreme Court (like any court) has always had a “shadow docket,” the past few years have seen a dramatic uptick in summary orders in which the justices have changed the status quo, including by allowing controversial Trump administration policies blocked by lower courts to go into effect while the government appealed, lifting lower-court rulings that had halted scheduled executions, or directly enjoining state policies for the duration of an appeal when lower courts had refused to do so. In other words, what’s new (and alarming) is not the shadow docket itself; it is the extent to which the justices are using it more and more often to issue significant rulings that change the rights and responsibilities of millions of Americans, all without the daylight (including multiple rounds of briefing, oral argument, and lengthy opinions setting out principled reasons for the decision) that comes with plenary review.
Read more: https://slate.com/news-and-politics/2021/04/scotus-shadow-docket-use-problem.html more excerpts below.
The uptick in these kinds of rulings has been both well documented and roundly criticized—and not just by progressives. Baude (who, among other things, clerked for Chief Justice John Roberts) wrote in April 2019 that the way the justices had handled shadow docket rulings in a series of death penalty cases over the prior two months “is no way to run a railroad.” (Several of those rulings lifted lower-court decisions that had paused executions.) And at a House Judiciary Committee hearing this February (I testified at the hearing), even some of the Republican members echoed concerns about the specter of unsigned, unexplained Supreme Court rulings that alter the law for countless Americans.
All of this matters because the Supreme Court is not a trial court. As the justices are fond of reiterating in every other context, “we are a court of review, not of first view.” And the Supreme Court’s rulings are binding on other courts, apparently including rulings like the one on Feb. 5 in which the court … didn’t say anything. The suggestion that there’s nothing at all wrong with the justices using unsigned, unexplained orders handed down in the middle of the night to change the law on a nationwide basis just because trial judges sometimes do so in individual cases with far lower stakes is risible, all the more so for lower-court judges and local, state, and federal officials—who are left to their own devices to figure out exactly what the law is going forward.