Like clockwork, each June brings the Supreme Court back to the forefront of America’s culture wars, as the justices issue major new opinions that are equal parts significant and divisive—precipitating a flood of headlines, popular opinion pieces, and longer-form academic responses. This term attracted a flurry of coverage of the court’s decisions on abortion, immigration, guns, LGBT discrimination, religion, the president’s financial records, and the separation of powers.
But after the fanfare subsided, the justices have spent the first month of their summer recess handing out an unusually large and divisive number of significant rulings. These rulings are quietly shaping the rules of the upcoming elections, how governments can (and can’t) respond to COVID, the resumption of the federal death penalty, and more. But they aren’t decisions in argued cases left over from last term. Rather, these are decisions on what University of Chicago law professor Will Baude has dubbed the “shadow docket.”
The court’s “merits docket” includes cases in which the justices first decide to grant review, take full briefing (including from outside parties), hold oral argument, and then deliver lengthy, signed opinions providing the court’s reasoning and resolving the case. In contrast, the “shadow docket” consists almost entirely of summary orders, usually only one sentence long. These orders tend to be based on far less participation from lawyers, far less briefing, and no oral argument. And, in almost every case, they offer virtually no insight into the justices’ reasoning—unless some of them choose to write separately to explain their concurrence or dissent. Indeed, unlike merits cases, we usually don’t even know how the justices voted on the shadow docket—unless four justices publicly note their dissent (or three, if it’s an order granting review). For those reasons and others, these orders tend to receive far less scrutiny from the press, the public, and the academy—and far less attention and precedential weight from lower courts. Yet there are more than 6,000 cases decided this way each term. Many of these rulings are as unsurprising as they are unimportant. But not all of them.
As the last month has driven home, the lack of attention distorts not only the public perception of the court but also our understanding of the ways in which the justices’ “shadow docket” rulings can affect our lives. Just since the beginning of July, the justices have issued rulings on the “shadow docket” that
• cleared the way for the first three federal executions in 17 years after lower courts had repeatedly halted them;
• refused to disturb a Nevada COVID-related emergency order that treated churches more harshly than casinos;
• blocked a grassroots effort in Idaho to increase funding for K–12 education;
• allowed President Donald Trump to finish using military construction funds to complete his controversial border wall—even though every lower court to consider the issue has ruled that such repurposing of funds is unlawful;
• pushed back resolution of a dispute between the House of Representatives and the Justice Department over the Mueller report in a way that will ensure that the Justice Department prevails;
• prevented potentially hundreds of thousands of eligible voters in Florida from voting this November by refusing to freeze Florida’s “pay to vote” law, which requires felons to clear any claimed outstanding judgments before voting, and which the lower court had struck down as flagrantly unconstitutional; and
• froze a district court order that had required an Orange County jail to take measures its own policies already required to protect inmates from an outbreak of COVID-19.
What’s more, we know that at least seven of the nine orders in these cases were decided 5–4. And although it’s hard to account for every ruling on the shadow docket, two slices of the data underscore the uptick in both the frequency of such rulings and their divisiveness: First, in the Trump administration’s 3½ years in office, the justices have granted (in whole or in part) 22 stay requests from the federal government (including 10 during the current term alone)—compared with a total of four grants of such requests in the 16 years of the George W. Bush and Obama administrations combined. (Trump has submitted 34 applications, versus 16 from Bush and Obama combined.)
Second, the shadow docket is quickly crowding out the merits docket. During the October 2017 term (Justice Anthony Kennedy’s last on the court), only two stay applications provoked four justices to publicly note their dissents. In the not quite two terms since, there have been 20 separate orders from which four justices publicly dissented—including 11 so far this term (and six since the beginning of July). By contrast, there were only 12 merits decisions during the current term that split the court 5–4 (the SCOTUSblog list of 14 includes two “shadow docket” rulings). With two months to go, it seems likely that the shadow docket will produce more 5–4 splits than the merits docket—for the first time, well, ever.
Not only are these shadow docket rulings decided by narrow margins, but they’re also more strictly partisan. Unlike the unusual lineups we sometimes see in cases that receive full briefing and argument, the 5–4 splits in stay cases have all featured the same two voting alignments: Chief Justice John Roberts joining the other conservative justices to form a majority, or joining the progressives to form a majority.
Because all of this is happening in the shadows, we can’t know for sure why it’s happening—including whether this is a function of Kennedy’s departure, a substantive shift in how the justices weigh the traditional factors that are supposed to go into resolution of such orders, a newfound hostility to lower courts, or some combination of all three. But regardless of why it’s happening, it is increasingly difficult to deny its impact. Not only are these orders directly affecting millions of lives, but they’re also starting to be cited as precedent by lower-court judges—even though the justices themselves have long insisted that they lack precedential value. They’re becoming especially common in election-related and COVID-related cases—of which we can expect only more between now and this fall. And it’s all happening as Congress, which has the unquestioned power to exercise far more control over the justices’ caseload, has done nothing to change any of the relevant rules in well over three decades.
Whatever one’s views, this uptick is worthy of far more attention. Among other things, these rulings put the justices in the position of deciding weighty legal issues at a very early stage of litigation, in a context in which it is often unclear exactly what the relevant facts are and in which legal arguments have not been fully developed. The justices are fond of insisting that theirs is a “court of review, not first view,” except, apparently, in these cases. In the process, these disputes consume significant time and energy at the expense of the court’s “merits” cases, which dropped to their lowest total this term (with 52 cases) since … 1862. And in their impact, the justices’ rulings to date reveal three problematic trends: Republican federal and state government parties fare far better than their Democratic counterparts; the impact these orders have upon the public has disappeared from the legal analysis; and the justices are even more sharply partisan in these cases than in those that receive more attention.
But by far the most troubling feature of all of this is that it’s happening in the shadows. It’s not just that most of these orders are accompanied by no reasoning; it’s that they’re handed down at all hours of the day (including quite a few after midnight or on Friday afternoons), with little opportunity for public involvement or scrutiny. It was one thing for the shadow docket to be so invisible to the public when it wasn’t as important. But with more and more of these decisions affecting more and more of us on a regular basis, it would behoove the justices to do whatever they can to bring more of these rulings into the sunlight—and for Congress to consider more aggressive reforms if they don’t.
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