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.
Consider, for example, a pair of rulings involving COVID-based restrictions on indoor religious services from February. On Feb. 5, a Friday night, the court issued an unsigned order temporarily freezing most of California’s statewide restrictions on indoor religious services (a series of churches were appealing lower-court rulings that had refused to freeze the restrictions). Although there were concurring opinions by some of the justices, there was no opinion for the court providing guidance as to why California’s restrictions not only went too far, but why they warranted the (previously) “extraordinary” remedy of an emergency injunction. Three weeks later, late on another Friday night, the court likewise blocked narrower restrictions imposed by Santa Clara County. And although, once again, there was no majority opinion or vote count, the unsigned order even chastised the federal appeals court for not blocking Santa Clara County’s rules, because the result in the Santa Clara case, in the court’s view, was somehow “clearly dictated” by the Feb. 5 statewide ruling; never mind that the earlier ruling came with no opinion of the court. This trend came to a head last Friday, when the court—by a 5–4 vote—temporarily blocked California’s restrictions on in-home gatherings, finally offering a short opinion for the majority that at least attempted to offer a rationale.
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.
Against this backdrop, consider a remarkable friend-of-the-court brief filed on Wednesday by the Becket Fund for Religious Liberty in support of the latest challenge to California’s COVID restrictions. In addition to criticizing how California’s rules limit private Bible study, the brief purported to offer a defense of the shadow docket: It rests most of its argument on the obvious and uncontestable assertion that nearly every court has, and has need of, an emergency docket, and that “in comparison to the thousands of other emergency dockets around the country, there’s nothing shadowy at all about the Court’s emergency docket.” This latter contention misses both the central thrust of the criticisms of the court’s shadow docket and the rather different role that the Supreme Court plays in our legal system compared with that of individual state and federal trial judges. To the former, again, the objections are not to the existence of the court’s emergency docket but to how much more frequently the justices have used such orders in the past three years specifically to change the status quo, to the apparent but unexplained doctrinal shifts that seem to be animating this uptick, to the justices’ seeming defiance of their own standards for granting emergency relief and, in at least some of these cases (like a January ruling by the justices on an emergency application filed by the Justice Department last August), the complete absence of an “emergency.” Some emergencies are obviously unavoidable, e.g., when a death row prisoner brings a late-arising challenge to the method of his execution. But the notion that all abridgements of individual rights justify emergency relief would come as a surprise to many—and would rather significantly restructure our judicial system.
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.
Instead, defenders of the increasing significance of the court’s shadow docket, including the Becket Fund, tend to rely on the argument that the shadow docket is essential because otherwise the court might, as the Becket Fund’s president has put it in a National Review piece specifically criticizing testimony I gave to a House committee regarding the shadow docket, “allow important constitutional rights to be infringed—often for years—in order to decide cases at a more leisurely pace.” But the court’s precedents are unambiguous in that the justices are also supposed to take into account the potential irreparable harm that both parties would suffer from a ruling one way or the other, all as part of a broader balancing of the equities. In the COVID cases, this means balancing the potential harm from temporary interference with some aspects of religious worship against the potential harm to the public from allowing large private gatherings. This is not just an arbitrary procedural rule; it implements and protects the basic structure of our legal system, in which trials come before appeals—and in which it often does take years to vindicate constitutional rights on appeal (including cases during which criminal defendants languish in prison in the interim). But the alternative is unsustainable chaos, where every case goes right to the Supreme Court on every plausible constitutional issue.
That’s why the central criticism of the shadow docket is that it has become, of late, a de facto merits docket, not because of the results in these cases (indeed, I agree that some of the lower-court decisions that SCOTUS overturned in this manner had been erroneous) but because of the procedural shortcuts the justices are taking to reach them, where all that appears to matter is whether a majority thinks that the plaintiffs should ultimately prevail rather than how they get there or what harm might befall others as a result. Tellingly, the Becket Fund’s brief doesn’t dispute this characterization; it embraces it because none of those concerns should apparently matter when religious liberty is being infringed upon. Here, at least, the Becket Fund brief does the courtesy of saying the quiet part out loud: Its support for the shadow docket is driven entirely by its support for the results in the court’s shadow docket rulings, sustaining religion-based challenges to state COVID restrictions. In the end, the Becket Fund’s brief thus drives home exactly what is wrong with the current use of the shadow docket—by making clear that all that matters is the bottom line.
UCLA football coach Red Sanders is responsible for one of the most famous saying in sports: that “winning isn’t everything; it’s the only thing.” All too often in recent years, this attitude—that nothing matters other than the outcome—has shown up in our political discourse, where principles are abandoned at the drop of a hat if and when they don’t support the desired partisan political result of the moment. Perhaps the most troubling thing about the rise of the Supreme Court’s shadow docket is the perception that the same disease has increasingly infected the justices. The Becket Fund’s brief only serves to reinforce that perception, and to further underscore why the Supreme Court’s “shadow docket” really is a problem, even if the results the justices are reaching are not.