Casting a Bright Light on the Supreme Court’s ‘Shadow Docket’
THE SHADOW DOCKET: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, by Stephen Vladeck
“Because Y is a crooked letter”: The first time I heard a parent saying this to her child it took me a few beats to understand what she meant. The boy had been asking, “Why?” about a perceived injustice — an order to leave the playground before he was ready. The mother’s response was simply a poetic variation of that old standby “Because I said so.” No explanation was forthcoming because none was needed. Mom was laying down the law. The kid had to obey it. Case closed.
I was reminded of this episode as I read Stephen Vladeck’s important new book about the Supreme Court, “The Shadow Docket.” The title draws a direct contrast with the so-called merits docket that we usually associate with the court, which includes extensive briefings, comprehensive oral arguments and written opinions that are signed by the justices, detailing their reasoning. But merits decisions turn out to be “only a small sliver” of the Supreme Court’s output, Vladeck writes. All the soaring rhetoric and painstaking legal analysis amount to little more than 1 percent of the court’s decrees.
That’s right — almost 99 percent of the court’s decisions take place on the shadow docket, a term that was coined in 2015 by the conservative legal scholar William Baude for those orders that aren’t subject to the “high standards of procedural regularity set by its merits cases.” Orders on the shadow docket are, in Vladeck’s description, “unseen, unsigned and almost always unexplained”: the juridical equivalent of “Because I said so.” While such summaries aren’t new — they arose over the last century as a way to help the justices manage their growing caseload — Vladeck argues that they are being deployed more frequently and in increasingly novel ways. The shadow docket doesn’t just serve as a neutral realm of routine case management; instead, “the court’s new conservative majority has used obscure procedural orders to shift American jurisprudence to the right.”
Vladeck, a professor at the University of Texas School of Law and an analyst at CNN, chronicles how the shadow docket came to be. He traces the development of a generally weak Supreme Court in the antebellum era to one that by the early 20th century had expansive discretion to decide which cases it wanted to hear (and which it didn’t) by granting (or denying) what’s known as a “writ of certiorari” as part of its shadow docket. But it was capital punishment, he says, that really gave rise to the shadow docket as we know it. The finality of an execution meant that all appeals needed to be fully resolved before a person was put to death. A prisoner seeking emergency relief from the court could petition for an expedited ruling, arguing that an unlawful execution would cause “irreparable harm.”
All of this sounds straightforward enough. But as Vladeck shows, just what constitutes “irreparable harm” — and, by extension, an “emergency” — has turned out to be a matter of interpretation. The one-term Trump administration sought emergency relief from the Supreme Court a whopping 41 times. (Compare this with the 16 years of the George W. Bush and Barack Obama administrations, when solicitors general sought emergency relief a grand total of eight times.) In fact, “shadow docket rulings from the Supreme Court would clear the way” for federal executions to resume under Trump by vacating a lower court’s stay or injunction.
Vladeck is a conscientious guide through the legal thickets, taking care to show exactly how the conservative members of the court have used the shadow docket to expand religious liberty and crush reproductive rights. Almost 10 months before the Dobbs decision was handed down in June 2022, the court’s conservative majority refused to block Texas’ ban on abortions after the sixth week of pregnancy, despite the fact that the ban was in flagrant violation of Roe. Justice Elena Kagan wrote a blistering dissent lambasting “this court’s shadow-docket decision making, which every day becomes more unreasoned, inconsistent and impossible to defend.”
With “The Shadow Docket,” Vladeck has taken it upon himself to translate the court’s deliberately cryptic orders and legal technicalities into accessible English. Perhaps inevitably, though, his subject matter can get so convoluted that it forces him to write mouthfuls like this: “Justice Alito had issued an administrative stay to temporarily prevent a different district court’s administrative injunction against a Biden administration immigration policy from going into effect until the full court could rule on the Justice Department’s application for a stay pending appeal.” I had to read that sentence so many times my eyes were watering.
But at least Vladeck (unlike the court) is trying to explain to us what is happening. He also takes pains in this book to be as fair and methodical as possible, since even the term “shadow docket” has triggered the ire of some of the conservative justices (“catchy and sinister,” scoffed Samuel Alito; “catchy but worn-out,” complained Brett Kavanaugh). Vladeck is upfront about his own views, saying when he agrees with a merits decision and when he doesn’t. Yet even disagreement is preferable to the bewilderment generated by the shadow docket, which typically leaves the public in the dark not just about why the justices decided as they did but also about which justices did so. We can discern their identities mainly in instances when justices who disagreed with the ruling have signed public dissents.
This is “Because I said so” taken to another level. And as such, the promiscuous use of the shadow docket connects to larger questions of trust. The conservative justices have tended to bristle at public criticisms of the court, insisting that they are working in good faith and in the public interest, going so far as to suggest that any criticism is a partisan attempt to delegitimize the institution. Vladeck counters by arguing that he wrote this book precisely because he cares about the Supreme Court, which seems to operate under the delusion that it can maintain trust while denying “the legitimacy crisis that the justices’ own actions have precipitated.”
This legitimacy crisis has obvious implications for democracy. After all, only a die-hard authoritarian (or maybe an exasperated parent) will insist on a trust that is unconditional and utterly mindless — something to be taken for granted instead of earned.
THE SHADOW DOCKET: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic | By Stephen Vladeck | 334 pp. | Basic Books | $30