Jurisprudence

Brett Kavanaugh’s Defense of the Shadow Docket Is Alarming

Kavanaugh smiling in his robes in front of a red curtain
Associate Justice Brett Kavanaugh in Washington on April 23. Erin Schiff/Pool/Getty Images

On Monday, by a 5–4 vote, the Supreme Court reinstated the proposed congressional district maps in Alabama that two different lower courts had held diluted the power of Black voters in violation of the Voting Rights Act. The ruling is temporary—the justices agreed to take up Alabama’s appeal of the lower court rulings in their October 2022 term. But as election law scholar Rick Hasen has noted, Monday’s decision has both immediate short- and long-term effects: Alabama’s racially gerrymandered maps will now be used at least through the 2022 midterms, and the justices have made it harder for any plaintiffs to bring Voting Rights Act challenges to congressional redistricting.

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Monday’s order came on what University of Chicago law professor Will Baude has dubbed the “shadow docket”—the unsigned, unexplained orders that make up a majority of the Supreme Court’s workload. As I’ve documented, although the court has always had a shadow docket, in the last five years we have seen dramatic changes in exactly what the court uses it for. The changes have not been for the better. Indeed, Monday’s ruling is a perfect illustration not just of how the shadow docket has changed, but why those changes are increasingly indefensible: The court routinely flouts its own procedural standards to change substantive law in unexplained and inconsistent rulings.

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Yesterday, the Supreme Court was asked to decide whether to issue a “stay” of the two lower-court rulings in the Alabama cases while Alabama appealed them—a move that would have prevented the lower-court decisions from going into effect. The lower courts had blocked Alabama’s maps on the grounds the state had willfully refused to create a second majority-Black congressional district, instead divvying up Black neighborhoods to inflate white residents’ voting power. Stays are supposed to be an “extraordinary” remedy meant for extraordinary cases, where three different things are true: First, the party seeking a stay must be likely to win their appeal. Second, it must be the case that not freezing the lower-court ruling while it is appealed would cause the appealing party “irreparable harm”—that is, harm that a successful appeal could not adequately remedy. And third, the public interest—to both the parties and society at large—must be served by such relief. What this test hopefully drives home is that stays are (supposed to be) rarely granted and are (supposed to be) limited to cases where lower courts didn’t just err, but erred in ways that cause immediate, harmful effects to the party that lost.

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We can’t know how a majority of the justices applied these factors to the Alabama cases. Only Justice Brett Kavanaugh (joined by Justice Samuel Alito) wrote to explain his rationale. But what he wrote was not exactly reassuring. First, Kavanaugh suggested that the normal rules for stays don’t apply because these are election cases, and election cases are covered by a different rule known as the “Purcell principle” (also articulated on the shadow docket) that federal courts should not block election rules on the eve of elections. Thus, to Kavanaugh, the burden was on the plaintiffs to show that “the underlying merits are entirely clearcut” in their favor in order to win in the district court. And by his reasoning, the fact that there is even some question on the merits of the case justifies freezing the district court’s rulings. But there’s one critical problem with this line of thinking: The election in Alabama is still nine months away. Even the primaries are in late May. It’s hard to see how district court rulings in January even implicate that (contestable) principle, unless the court has silently expanded it to swallow all election cases.

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Second, perhaps recognizing how weak the election-specific argument is, Kavanaugh also attempted to suggest that Alabama would be entitled to stays of the lower-court rulings even under the court’s ordinary three-part standard. In a footnote, he wrote, “Even under the ordinary stay standard outside the election context, the State has at least a fair prospect of success on appeal—as do the plaintiffs, for that matter.” This sentence gives up the game. If both sides are equally likely to prevail on the merits—if it’s a 50-50 case—then the only justification for a stay would be if every other factor decisively favored Alabama. And yet not only did Kavanaugh have nothing to say about the other considerations, but there are compelling arguments that they, too, would favor leaving the district court rulings intact. Alabama still has plenty of time to adopt district maps that don’t violate the Voting Rights Act (so any harm is not irreparable), and presumably it is in the public interest (and especially the interest of Alabama’s 1.3 million Black residents) to have representation that does not unlawfully dilute the power of Black voters.

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Instead, what’s really going on in this case is made crystal clear by Chief Justice John Roberts’ technical (but analytically devastating) dissent. Roberts’ short opinion expressed sympathy for Alabama’s claims on the merits, but also stressed the fundamental problem with the court’s use of the shadow docket: that ruling for Alabama will require the court to make new law, because “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction” (emphasis mine). In other words, Roberts voted against staying the lower-court rulings because they were correct under the law as it exists today, even if he’s perfectly willing to change those laws tomorrow. Against that backdrop, it becomes clear why the ultraconservative majority came out the other way: not because the justices disagree with Roberts that the district courts were right, but because they are willing to change the law today.

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That change may not be memorialized until sometime in 2023, when the court hands down its merits decision in these cases. But thanks to Monday’s ruling, the change is already reflected in practice in Alabama—and perhaps will be in other states soon. In this regard, Justice Elena Kagan was entirely correct in her dissent to complain that the ruling “is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument.” And in this case, the new law could have a profound effect on upcoming elections. As Slate writer Mark Joseph Stern pointed out, Monday’s ruling effectively (even if not formally) gutted the Voting Rights Act’s ban on racial gerrymandering, allowing states yet another tool to dilute the voting power of racial minorities. But Monday’s ruling isn’t a disaster only for voting rights; it’s also a harbinger of even more problematic shadow docket rulings to come.

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