Jurisprudence

Congress Finally Scrutinizes One of SCOTUS’s Most Disturbing Practices

There’s one court reform Democrats and Republicans might actually agree on.

The Supreme Court at dusk, with a large fence around the building.
Night falls on the Supreme Court. Samuel Corum/Getty Images

Over the past few years, the Supreme Court has dramatically altered the way it decides most cases—without acknowledging or justifying this radical shift. More and more often, the justices forgo the usual appeals procedure in favor of rushed decision-making behind closed doors in what’s known as “the shadow docket.” They issue late-night opinions on the merits of a case without hearing arguments or receiving full briefing, and often refuse to reveal who authored the opinion, or even how each justice voted. The public is then left to guess why or how the law has changed and what reasoning the court has embraced. These emergency orders are supposed to be a rare exception; today, however, the court regularly uses them to make law in hugely controversial cases, including disputes over the border wall, COVID-19 restrictions, and executions. On Thursday, the House Judiciary Committee held a hearing to decide what, if anything, Congress can do to address a problem that’s spiraling out of control.

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The House’s interest in the shadow docket is an encouraging sign that at least some members of Congress want to exercise their own constitutional powers to help fix the Supreme Court. It’s easy to forget that the democratic branches of government have real power over the federal judiciary. Congress can force SCOTUS to hear certain cases and prevent it from hearing others; it created the lower courts and gave them authority to decide a wide array of controversies, a privilege it can also strip away. In 1996, for instance, Congress revoked federal courts’ power to hear many lawsuits filed by state prisoners. Back then, lawmakers decided that courts were granting relief to too many people behind bars, so it took away the tools judges needed to safeguard due process. Progressives hate that law, and rightly so, but it’s a reminder that Congress can rein in a judiciary that it perceives to be out of control. Will Democrats take advantage of that power now that they hold Congress and the White House?

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After Thursday’s two-hour hearing, it appears the short answer is: maybe. Members of both parties asked good, sometimes surprisingly sharp questions of the four witnesses: Steve Vladeck, a professor at the University of Texas School of Law (and Slate contributor); 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. Vladeck, probably the foremost expert on the shadow docket, laid out the issue succinctly. Shadow docket decisions are rushed and regularly unsigned. They disrupt the normal appeals process, allowing favored plaintiffs to leapfrog over lower courts to claim a quick victory at SCOTUS. They divide the court along partisan lines more often than normal decisions. They routinely give lower courts little to no guidance, forcing judges to guess what the majority is thinking. All of these features undermine public confidence in the court, which, in turn, threatens its legitimacy.

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Between 2017 and 2020, the number of divided shadow docket decisions increased roughly tenfold. There are a number of reasons why: The Trump administration aggressively lobbied the Supreme Court to issue emergency orders approving some executive actions, and got what it wanted with alarming frequency. For example, SCOTUS never issued a decision upholding Trump’s raid of federal funds to build his border wall without authorization, or affirming the legality of multiple restrictions on asylum. Yet Trump was able to build (part of) his wall and impose draconian limits on asylum-seekers anyway, because SCOTUS authorized these policies through the shadow docket (sometimes by 5–4 votes). The Trump administration also urged SCOTUS to lift stays of execution during its eleventh-hour killing spree, and the conservative majority happily obliged. Republican activists and office holders joined in before the 2020 election, racing to SCOTUS to clear away decisions that expanded voting rights in their states.

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But there are other factors within the court driving the explosion of the shadow docket—most importantly, the abrupt rightward shift of the majority since 2018. As soon as Justice Brett Kavanaugh replaced the much more moderate Justice Anthony Kennedy that year, the court began to issue more divisive shadow docket decisions upholding Trump policies and allowing executions. Kennedy had a moderating influence on the court, forcing the other conservatives to compromise or slow-walk their goals. When Kavanaugh took his seat, he joined his fellow conservatives in ramming through emergency orders over the dissents of the liberal justices. Justice Amy Coney Barrett may accelerate that trend: In her brief time on the court, she has consistently joined the conservatives in issuing brash shadow docket orders. There is one notable exception—her decision to block an execution on religious liberty grounds—but that decision illustrates another flaw: We do not know who cast the fifth vote to halt the execution, because the justices are not obligated to note their votes on the shadow docket.

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While every Democrat who participated in Thursday’s hearing seemed to agree that this shift poses a real problem, not all were certain that they could legislate a solution. Rep. Greg Stanton of Arizona came out swinging hard for reform, condemning SCOTUS over issuing “decisions with sweeping implications” in “the dark,” using a “rationale hidden from the public.” How, he wondered, could Congress compel the justices to at least “record its vote” instead of “going unchecked”? Rep. Ted Lieu of California asked if Congress could force justices to “put their names on opinions.” Vladeck questioned whether such a measure would pass constitutional muster. But, remarkably, Republican Rep. Louie Gohmert of Texas endorsed the idea. “I am a fan of judges and justices making clear who is making decisions,” the lawmaker said. “I think Congress does have authority to require such a thing.” (Gohmert’s fellow Republicans spent much of the hearing asking Morley about the rise of nationwide injunctions under Trump, a phenomenon that does not actually explain the rise of the shadow docket.)

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Rep. Zoe Lofgren sounded less sure than her fellow Democrats about the significance of the problem at hand. The phrase “shadow docket,” she warned, “probably is unnecessarily pejorative.” She vaguely endorsed “thoughtful deliberation” about putting “some guardrails on this” by requiring “more transparency and a more deliberative process.” These “guardrails,” she clarified, are not an effort to weaken SCOTUS, but to “protect the reputation of the court.” The generational divide between Democrats on the topic of court reform was strikingly clear when, a few minutes later, freshman Rep. Mondaire Jones attacked the “rogue” Supreme Court for its “partisan” and “highly secretive” use of the shadow docket to greenlight voter suppression and approve stringent new limits on immigration under Trump.

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Jones, who supports expanding the Supreme Court, is almost certainly to the left of Democrats like Lofgren when it comes to court reform. But it’s notable that no Republicans tried to defend the shadow docket as a valid way of doing day-to-day business; no one, it seems, wants to argue that unsigned opinions issued in the wee hours of the morning are a good way to make law. Yet hard-line responses, like forcing the court to publicize how every justice voted, are still a long way off.

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For now, the most likely reforms are a series of nudges Vladeck has proposed. Some are minor, like shortening the timeline for appeals and requiring the Supreme Court to hear certain cases that Congress deems important. Others are more direct. SCOTUS is already supposed to withhold emergency relief unless the litigant has demonstrated that they will suffer irreparable harm without a stay, and to balance the interests of the parties and the public. In the past few years, it has simply abandoned these rules. Congress can order the court to restore this standard, requiring the justices to stop treating shadow docket decisions like normal cases and, hopefully, stem the flow of emergency orders.

In truth, though, the House Judiciary Committee may have already taken the first step toward a solution by holding a hearing. The more that lawmakers scrutinize the shadow docket, the less attractive it becomes for the justices—especially those, like Chief Justice John Roberts, who are conscious of the court’s public image. Thursday’s hearing proved that Democrats are serious about exploring court reform. The justices are now on notice that they cannot keep doing their work under cover of darkness much longer.

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