This is a part of Disorder in the Court, a weeklong series on the legal press and the most explosive Supreme Court in generations: how we cover it, how we’ve failed, and how we can do better.
This essay is adapted from the book The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, by Steve Vladeck, published by Basic Books.
No shadow docket decision brought more public attention to the Supreme Court’s growing reliance on unsigned, unexplained orders, or provoked more public outrage, than the single long paragraph that the court handed down at 11:58 p.m. on Sept. 1, 2021.
In Whole Woman’s Health v. Jackson, the court, by a 5–4 vote, refused to block S.B. 8, or the “Texas Heartbeat Act,” a state law banning virtually all abortions after the sixth week of pregnancy, which had gone into effect 23 hours earlier. Indeed, almost 10 months before the justices would use the merits docket to controversially repudiate the constitutional right to a pre-viability abortion that the court had recognized in Roe v. Wade and reaffirmed in Planned Parenthood v. Casey, five of the conservative justices used the shadow docket to make it nearly impossible to get an abortion in the nation’s second-largest state.
As Justice Elena Kagan argued in her brief but forceful dissent, the decision both embodied and crystallized the growing critiques of the shadow docket. Moreover, the public backlash that the ruling provoked helped to spur the first public defenses of the court’s changing behavior. The court’s direct and indirect responses in many ways only reinforced the central critique—that the court was not just using the shadow docket with greater frequency, but that it was abusing it. And those abuses, as they have added up, have raised serious questions about the court’s broader institutional legitimacy—where it comes from, why it matters, and how it erodes. The harder question is how those abuses can and should be reined in.
What was new about the S.B. 8 ruling was that it made enormous waves publicly. The decision dominated newspaper headlines the following day, and a flood of critical editorials and op-eds quickly followed. But this time, picking up on Kagan’s dissent, the stories focused not just on the substance of the court’s shadow docket ruling, but also on the context in which it was handed down.
For the first time, the justices’ procedural behavior was a main character in the story, alongside (rather than overshadowed by) the bottom line of the court’s ruling. A subsequent study by the Chicago Policy Review found that the term “shadow docket” went through something of a renaissance in the days and weeks after Sept. 1, appearing in more than 20 pieces in the New York Times, the Washington Post, the Chicago Tribune, and the Wall Street Journal in the six weeks between Sept. 2 and Oct. 15. By contrast, the term had appeared in fewer than 15 pieces in those same publications in the first eight months of 2021, and fewer still during all of 2020. Apparently, it was bad enough that the court had effectively ended abortion in Texas, but it was incomprehensible that it had done so via one technical and largely inscrutable paragraph that refused to specifically resolve anything.
The public backlash also provoked the first sustained public defenses of the court’s changing behavior, beginning during the last week of September. The most sustained defense came in a speech by Justice Samuel Alito at the Notre Dame Law School on Thursday, Sept. 30.
In addition to defending the court, Alito attacked the shadow docket’s critics, including me (whom he called out by name), for weaponizing the term itself as part of a broader agenda to delegitimize the court. “Recently,” Alito argued, “the catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. This portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”
Whatever the phenomenon is named, the claim that those trying to document and criticize it are seeking to “damage” the court’s independence confuses the symptom for the disease. I see (and intend) these critiques in exactly the opposite direction—as an effort to convince the court, or at least those who follow it, that it is the justices’ shadow docket behavior itself that is damaging the court and contributing to public erosion of its perceived legitimacy.
If change to the use of the shadow docket won’t come from within, then the focus must shift to Congress. Throughout the court’s first 200 years, Congress was regularly and repeatedly involved in regulating the Supreme Court’s jurisdiction, including in response to concerns raised by the justices or others about the state and shape of the court’s docket.
Insofar as the rise of the shadow docket is a response to pressures from elsewhere, one response would be for Congress to attempt to reduce those pressures. In cases in which plaintiffs have sought nationwide relief against the federal government, Congress could provide for expedited, mandatory merits appeals of lower-court orders granting such relief to the Supreme Court—to make it easier for the justices to affirm or reject the injunction on the merits sooner rather than later. And in general, if the justices are intervening more often at earlier stages in litigation because of a view that certain types of cases are taking too long to reach them, Congress can (and should) respond by enabling more expeditious plenary review. These reforms would not be taking away the court’s power; they would be redistributing it away from the shadow docket and toward the merits docket.
Congress also has the unquestioned power to prescribe the standards that the justices follow in granting emergency relief. Although the court has defied those standards in many of its recent shadow docket rulings, perhaps a legislative reaffirmation would exert pressure on the justices to hew closer to them. And although Congress would come closer to constitutional limits if it ordered the court to publicly disclose the vote counts on its orders or to provide a rationale anytime it grants an application for emergency relief, Congress could certainly encourage the justices to adopt those and similar norms going forward. Likewise, it could push the court to return to the historical model for shadow docket decision-making more generally, with the default of having emergency applications resolved by circuit justices, on the narrowest possible grounds, and with an understanding that those orders have no effect beyond the immediate dispute in which they were issued.
Now more than ever, it might seem especially odd to situate the shadow docket at the center of a narrative about the Supreme Court. After all, to a greater extent than has been true in generations, the merits docket is providing plenty of fodder all by itself. The October 2021 term alone gave us massively important—and controversial—merits rulings on abortion, climate change, guns, Miranda warning, religious liberty, and plenty of other things besides. And the October 2022 term is set to follow suit, with high-profile cases on everything from affirmative action to voting rights to whether website designers have to serve same-sex couples to how elections are conducted. In that respect, drawing more attention to the shadow docket at this precise moment in the court’s history may well come across to some as akin to criticizing the design of the deck chairs on the Titanic.
But what happens on the merits docket is possible only because of the evolution of the shadow docket—especially the power the justices have claimed to decide not only which cases they’ll resolve, but which questions they’ll resolve within those cases.
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That is to say, the merits docket exists in the shadows of the shadow docket, not the other way around. The shadow docket’s role in helping to create the conditions for the contemporary merits docket would be reason enough to elevate the place of the shadow docket in our understanding of the Supreme Court. And yet the rise of the shadow docket is not just an indirect contributor to eroding public confidence in the court; it is a direct contributor as well.
The Supreme Court’s power depends to a large degree upon the public’s willingness to accept its decrees—to quote from Planned Parenthood v. Casey, its legitimacy is based in “the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.”
If that legitimacy turns upon the court’s ability to explain itself, then the rise of the shadow docket is anathema to that understanding. The people can hardly be expected to acquiesce in decisions that they can’t possibly be expected to understand. The better the public understands the inextricable link between the rise of the shadow docket and the decline of public confidence in the court, the more ominous the implications of the court staying this course become—not just for the justices, but for the country.