Introduction
Every June, the legal world eagerly awaits the Supreme Court's most high-profile decisions as it wraps up its term. These rulings, which often address contentious issues like abortion rights, gun control, or religious freedom, make headlines and spark intense debate. However, there's another set of Supreme Court decisions that fly under the radar yet wield enormous influence over American law and society. These are the rulings that emerge from what's known as the "shadow docket."
In his book "The Shadow Docket," legal scholar Stephen Vladeck shines a light on this lesser-known aspect of the Supreme Court's work. He argues that the Court's increasing reliance on shadow docket decisions is causing serious harm to the American legal system and eroding the legitimacy of the nation's highest court.
This summary will explore the key ideas presented in Vladeck's book, examining how the shadow docket operates, its growing impact on American law, and why its use has become so controversial. We'll look at specific examples of shadow docket rulings and their consequences, as well as the broader implications for the Supreme Court's role in our democracy.
What is the Shadow Docket?
To understand the shadow docket, it's helpful to first consider how the Supreme Court typically operates. In most cases that come before the Court, there's a formal process: The justices agree to hear a case (known as granting certiorari), both sides submit written briefs and present oral arguments, and then the Court issues a detailed written opinion explaining its decision. These rulings, which make up the Court's "merits docket," are thoroughly deliberated and publicly scrutinized.
The shadow docket, by contrast, consists of the Court's many procedural decisions that don't follow this formal process. These include:
- Decisions on whether to grant certiorari (i.e., agree to hear a case)
- Emergency orders, such as stays of lower court rulings
- Injunctions that compel parties to start or stop certain actions
While these may sound like minor technical matters, they can have profound impacts on the law and people's lives. What's more, shadow docket rulings make up a staggering 99 percent of the Supreme Court's decisions.
The key features that distinguish shadow docket rulings from merits cases are:
- They're often issued without explanation, sometimes in just a single sentence
- They're frequently unsigned, so individual justices' votes aren't known
- They lack the benefit of full briefing and oral arguments
- They're made on a compressed timeline, sometimes in just days or hours
Vladeck argues that while procedural rulings have always been part of the Court's work, their nature and impact have changed dramatically in recent years. Since the mid-2010s, the shadow docket has increasingly been used to make significant changes to the law, often in ways that align with conservative political priorities.
The Trump Administration and the Shadow Docket
One of the most striking developments in the use of the shadow docket came during the Trump administration. Historically, presidential administrations have used emergency appeals to the Supreme Court sparingly. During the 16 years of the George W. Bush and Barack Obama presidencies combined, there were only eight such requests for emergency relief from the solicitor general (who represents the federal government before the Court).
The Trump administration, however, took a radically different approach. In just four years, it made 41 emergency relief requests to the Supreme Court. Of the 36 that received a formal response, 28 were approved. This meant that the Court frequently blocked lower court rulings that had gone against the Trump administration, allowing contested policies to go into effect even before their legality had been fully determined.
A prime example of this dynamic was the Trump administration's various attempts to implement a "travel ban" on individuals from several predominantly Muslim countries. The first two versions of this policy were blocked by lower courts. But when the administration appealed to the Supreme Court, it allowed parts of the second ban to go into effect while litigation continued.
When a third version of the travel ban was introduced and again blocked by lower courts, the Supreme Court stepped in once more. Through a shadow docket ruling, it allowed the entire ban to be implemented while the case was still being litigated. Months later, the Court upheld the ban's constitutionality in a formal ruling, but by then, it had already been in full effect for half a year due to the earlier shadow docket decision.
This pattern repeated with numerous other controversial Trump policies:
- Restrictions on transgender individuals serving in the military
- A rule preventing migrants from seeking asylum if they passed through another country en route to the U.S.
- The use of military funds to construct a border wall
In each case, lower courts had ruled against these policies, but shadow docket decisions by the Supreme Court allowed them to go into effect anyway. Many of these policies remained in place until the Biden administration took office and reversed them – without ever having been found legal by any court.
Vladeck argues that the Trump administration wasn't necessarily expecting to win these cases on their merits. Instead, they were seeking short-term political victories through emergency relief. The Supreme Court's willingness to grant these requests through the shadow docket effectively allowed the administration to implement legally dubious policies for extended periods, creating a new normal of "policy without law."
The Shadow Docket and Elections
Another area where the shadow docket has had a significant impact is in election law. Two key Supreme Court decisions set the stage for this influence:
Purcell v. Gonzalez (2006): This case established what's known as the "Purcell Principle," which states that courts should generally avoid changing election rules close to an election date to prevent voter confusion.
Shelby County v. Holder (2013): This decision struck down a key provision of the Voting Rights Act that required certain jurisdictions with a history of discrimination to get federal approval before changing their voting laws.
While Shelby County was a merits decision, its interaction with the Purcell Principle (born from a shadow docket case) has had far-reaching consequences. The combination has made it easier for states to implement restrictive voting laws or gerrymander districts in ways that disadvantage minority voters, while making it harder for lower courts to block these changes before an election.
For example, in 2021, Georgia passed a law redrawing its congressional districts. A federal court found that this new map likely violated the Voting Rights Act by diluting minority voting power. However, citing the Purcell Principle, the court allowed the map to be used for the 2022 elections anyway, because primary elections were approaching. As a result, Georgia voters cast ballots in districts that a court had determined likely violated their civil rights.
The COVID-19 pandemic brought another wave of election-related shadow docket decisions. In several cases, the Supreme Court overturned lower court rulings that had tried to make voting easier and safer during the pandemic. For instance:
- In Wisconsin, the Court blocked a federal judge's order to extend the deadline for receiving mail-in ballots, despite processing delays caused by COVID-19.
- In South Carolina, it reinstated a requirement for witness signatures on absentee ballots, which a lower court had suspended due to the health risks of in-person contact during the pandemic.
Vladeck notes a clear pattern in these decisions: they almost invariably benefit Republicans by making it harder to vote by mail, upholding voter ID laws, allowing gerrymandered districts to stand, and generally supporting stricter voting rules. By using the shadow docket to influence election procedures, the Supreme Court has repeatedly given an electoral advantage to one political party over the other.
The Impact on the Supreme Court's Legitimacy
The increasing use of the shadow docket has serious implications for the Supreme Court as an institution. Public faith in the Court's authority has been declining in recent years, and while some of this is due to controversial merits decisions, Vladeck argues that the shadow docket is making the problem even worse.
Several factors contribute to this erosion of legitimacy:
Lack of transparency: Shadow docket rulings are often unsigned and come with little or no explanation, making it difficult to understand the Court's reasoning.
Inconsistency: The Court's shadow docket decisions often seem contradictory, with the only consistent thread being that they tend to favor a particular set of political priorities.
Bypassing normal procedures: By making significant legal changes through emergency orders rather than full consideration of cases, the Court sidesteps the usual safeguards of thorough briefing, oral arguments, and detailed written opinions.
Frequency: The dramatic increase in the use of the shadow docket for consequential decisions has made these issues more prominent.
Even for those who agree with the outcomes of these rulings, the method by which they're reached should be concerning. The Supreme Court's power relies on its perceived legitimacy and the willingness of other branches of government and the public to respect and enforce its decisions. When people lose faith in the Court's ability to make judgments based on legal principles rather than politics, it threatens the very foundation of its authority.
Growing Awareness and Criticism
As the shadow docket's influence has grown, so too has awareness and criticism of its use. Journalists and legal scholars from across the political spectrum have begun to shine a light on this previously obscure aspect of the Court's work.
Even conservative voices have raised alarms. For example, Donald Ayer, who served as Deputy Attorney General under President George H.W. Bush, harshly criticized the Court's use of the shadow docket in 2021. He accused the Court of "brashness" in reaching radical decisions while bypassing proper channels of argument and explanation.
Criticism has come from within the Court itself as well. Justice Elena Kagan has frequently dissented in shadow docket cases, chastising her colleagues for making major legal changes based on "scanty review" of the issues at hand.
Interestingly, Chief Justice John Roberts has emerged as an unexpected check on the shadow docket's expansion. Despite generally siding with the conservative majority in merits cases, Roberts has joined the liberal justices in dissent on several significant shadow docket rulings. Between October 2020 and April 2022, he dissented in seven such cases.
In these dissents, Roberts has been careful not to reveal how he might vote if the cases were fully argued. Instead, he has focused on criticizing the use of the shadow docket itself as an inappropriate venue for overturning precedent or rewriting the law. This makes Roberts the only justice who has consistently voted against his presumed policy preferences to critique the shadow docket's methods.
The Dangers of the Shadow Docket
Vladeck outlines several key reasons why the expanding use of the shadow docket is problematic:
Lack of deliberation: Shadow docket decisions are made quickly, without the benefit of full briefing, oral arguments, or extended discussion among the justices. This increases the risk of errors or unintended consequences.
Absence of accountability: Because these rulings are often unsigned and unexplained, it's difficult to hold individual justices accountable for their decisions or to understand the Court's reasoning.
Inconsistency: The rapid-fire nature of shadow docket rulings has led to seemingly contradictory decisions, undermining the consistency and predictability that are hallmarks of a well-functioning legal system.
Politicization: The pattern of shadow docket rulings consistently favoring one political ideology over another feeds perceptions that the Court is acting as a partisan body rather than an impartial arbiter of the law.
Erosion of norms: By using emergency procedures to make significant legal changes, the Court bypasses important institutional safeguards and sets dangerous precedents for future abuse.
Undermining lower courts: Shadow docket rulings often overturn decisions made by lower courts after careful consideration, potentially demoralizing judges and weakening the entire judicial system.
Public confusion: The opaque nature of shadow docket rulings makes it difficult for the public to understand how and why the law is changing, potentially reducing faith in the legal system as a whole.
Potential Solutions
While the problems posed by the shadow docket are significant, Vladeck suggests several potential remedies:
Increased transparency: The Court could provide more detailed explanations for its emergency rulings, even if they fall short of full opinions.
Self-imposed limits: The justices could agree to use the shadow docket only for true emergencies, reserving significant legal changes for fully argued cases.
Congressional oversight: Congress could pass laws requiring more transparency in the Court's emergency procedures or limiting the types of cases that can be decided through the shadow docket.
Public pressure: As awareness of the shadow docket grows, public opinion could push the Court to reform its practices.
Internal reform: Justices like Chief Justice Roberts who are concerned about the shadow docket's expansion could work to build consensus for change within the Court.
Conclusion
Stephen Vladeck's "The Shadow Docket" sheds light on a little-understood but increasingly influential aspect of the Supreme Court's work. Through its use of emergency orders and other procedural rulings, the Court has been reshaping American law and society in ways that often escape public scrutiny.
The shadow docket has allowed contested policies to be implemented before their legality is fully determined, influenced election procedures in ways that advantage one political party, and made significant changes to the law without the benefit of full arguments or explanations. This trend poses a serious threat to the transparency, consistency, and legitimacy of the American legal system.
As awareness of the shadow docket grows, so too does criticism from across the political spectrum. Even some members of the Court itself have begun to push back against its overuse. The challenge now is to find ways to rein in the shadow docket and restore faith in the Supreme Court as an impartial arbiter of the law.
Ultimately, the issues raised by the shadow docket go to the heart of how justice is administered in the United States. They force us to grapple with fundamental questions about transparency, accountability, and the proper role of the judiciary in a democratic society. As these debates continue, the future of the Supreme Court – and the rule of law itself – may hang in the balance.