The Shadow Docket - Book Summary

Unveiling the unseen power: How the Supreme Court subtly shapes law through the shadow docket

At the brink of every summer recess, legal eagles, journalists, and curious observers alike look toward the Supreme Court with bated breath. As the Court wraps up its season, it unveils its verdicts on some of the most debated, headline-grabbing cases, providing eager spectators a sneak peek into the legal future of the nation.

But the Supreme Court has another weapon in its arsenal that stealthily delivers impact, largely unnoticed — the shadow docket. According to Stephen Vladeck, these decisions, despite their lower profile, wield a profound influence. However, their unchecked power and cryptic nature are creating ripples of disturbance in the sea of American jurisprudence, casting a cloud of doubt over the Supreme Court’s legitimacy.

In this gripping narrative, we'll uncover the hidden intricacies of the shadow docket, separating it from the more publicized merits docket that rolls out each June. We'll delve into a handful of these stealth cases that have silently sculpted America's legal and societal landscape, and shed light on why the Supreme Court’s unchecked use — and potential misuse — of this surreptitious tool raises critical concerns.

Unmasking the enigmatic shadow docket: The powerhouse behind the Court's procedural rulings

So, you may be asking, what really is this elusive shadow docket? Well, let's bring it out of the shadows. There are a few kinds of rulings that fall within its purview. A quintessential example is when the Supreme Court decides to accept a case, hear arguments, and issue a formal judgment — a process known as granting certiorari.

But there's more to the shadow docket. It’s also the birthplace of injunctions — orders from the Supreme Court demanding a party, perhaps a plaintiff or a lower court, to either initiate or cease their actions. On a practical level, this could imply the revoking of a law while a lawsuit continues or instructing lower courts to uphold the law. Beneath their seemingly ordinary exterior, these decisions have the potential to shape the course of the law significantly.

The rulings from the shadow docket represent a staggering 99 percent of the Supreme Court's decisions. However, it's not merely about the numbers. It’s the stealthy manner of these rulings, delivered without attribution or explanation, that amplifies the intrigue. The Court needs to deliver nothing more than a single sentence — an edict that holds potent legal influence.

It’s crucial to note that there's a marked difference in the nature of today's rulings compared to when the Supreme Court convened for the first time in 1790. Vladeck contends that since the mid-2010s, the shadow docket has served as a tool to recalibrate the law considerably. It's been instrumental in pivoting numerous legal facets, including elections, immigration, and capital punishment, towards a more conservative trajectory. It's acceptable for the Court to rule “on the merits” in either direction, but leveraging these procedural decisions to revolutionize American law? That's an infringement of the Court's power.

Up next, let's delve into concrete instances where Vladeck opines that the shadow docket has been manipulated for political mileage.

The Trump era: The seismic shift in the shadow docket's landscape

The Supreme Court reserves emergency relief for genuine crises — situations where failing to provide relief could lead to irrevocable damage. Across the Court's history, administrations of both political shades used this relief rather sparingly. Case in point, during the cumulative 16-year tenure of presidents George W. Bush and Barack Obama, only eight appeals were made for such relief. Half of these were granted by the Court, the remaining were dismissed.

However, this norm saw a dramatic change during Donald Trump’s presidency. In a span of just four years, the solicitor general — the federal government's legal representative — lodged a staggering 41 pleas for emergency relief. Out of the 36 that received a formal verdict from the Supreme Court, 28 were greenlit. Typically, this relief took the form of quashing lower court rulings that opposed the Trump administration. Consequently, many policies deemed unlawful by the lower courts were given the green light.

To fully grasp the real-world implications of this revised approach to emergency relief, let's scrutinize the three versions of the infamous Trump administration’s travel ban. In January 2017, an executive order blocked foreign nationals from seven largely Muslim countries from entering the U.S. for 90 days. Soon, five federal judges nullified this order. When the Trump administration requested the court of appeals to reinstate the travel ban, their plea was rejected.

Instead of resorting to the Supreme Court, the administration modified the travel ban, making it slightly less stringent. Again, federal courts nullified the order, and the court of appeals backed their verdict. However, this time, the administration escalated the issue to the Supreme Court. In June 2017, through an unsigned opinion, the Supreme Court permitted a portion of this second travel ban to take effect while the litigation continued. The Court also declared it would address the case on the merits in the upcoming term.

Before this case could be addressed, a third version of the travel ban was enforced. Once again, lower courts attempted to stop it. Yet, the Supreme Court allowed it to be in place while they considered the case. By June 2018, in the case of Trump v. Hawaii, the Supreme Court declared the third version of the travel ban constitutional. At that point, it had been actively enforced for six months.

Besides the travel ban, a host of other Trump administration policies were implemented, despite being vetoed by lower courts. These included a scheme to limit transgender individuals from serving in the military and a rule barring migrants from seeking asylum in the U.S. if they traversed another country en route.

Unlike the travel ban case, the Supreme Court didn't grant cert to these instances and didn't affirm their legality. These policies remained in force until they were revoked by President Biden's administration, even though no court deemed them lawful.

Vladeck posits that the Trump administration, aware that their policies would ultimately be toppled by the subsequent Democratic administration, had no intent to win these cases on their merits. Instead, they sought instant political triumphs via emergency relief. The Supreme Court appeared all too accommodating in supporting this endeavor, making policy without law the troubling new norm.

Up next, let's examine how the Court has recently employed comparable tactics to influence elections.

Supreme Court's rendezvous with COVID-19

Let's now turn our attention to the impact of the COVID-19 pandemic on the shadow docket. As the world grappled with a crisis of unprecedented proportions, the Supreme Court saw an influx of pandemic-related pleas. Various states and businesses sought relief from local restrictions designed to control the spread of the virus. These restrictions invariably had an impact on the exercise of constitutional rights, such as the freedom of religion.

As early as the spring of 2020, multiple churches and other religious entities petitioned against orders that curtailed congregational worship. While the Court initially dismissed these pleas, the tide started to change towards the end of the year. In November 2020, the court sided with religious entities in Roman Catholic Diocese of Brooklyn v. Cuomo . Here, the Court put a halt to New York’s restrictions on religious gatherings, citing that they violated the First Amendment's free exercise clause.

What followed was a cascade of rulings in favor of religious institutions, each delivered via the shadow docket without full briefings or oral arguments. These decisions reached a crescendo in Tandon v. Newsom in April 2021. In this case, the court overturned California's restrictions on in-home religious gatherings while the COVID-19 pandemic raged on. Significantly, the Court ruled that any regulation that treated any secular activity more leniently than religious practice was constitutionally suspect.

What is startling here is that the Supreme Court's past precedents did not make such an assertion. The court's rulings in the employment division v. Smith case in 1990 and the Church of the Lukumi Babalu Aye v. City of Hialeah case in 1993 made it clear that neutral and generally applicable laws, even if they inadvertently burden religious exercise, were in alignment with the Constitution. Yet, the shadow docket decisions have effectively shifted the landscape without a formal ruling or even acknowledgment that they were overturning precedent.

Moreover, the majority's rationale behind their rulings seems perplexing. For instance, the Court argued that because California treated comparable secular activities such as grocery shopping more favorably than religious gatherings, it violated the free exercise clause. However, as Vladeck argues, grocery shopping and attending religious gatherings are hardly comparable, given the latter often involves prolonged indoor gatherings with singing and other potential super-spreader activities.

What's even more perturbing is that the pandemic-related shadow docket decisions were often made over vociferous dissents, sometimes over the explicit objections of the state and local officials in charge of pandemic response. In her dissent to Tandon , Justice Elena Kagan criticized the court for usurping the role of local officials, expressing concerns that the court's intervention could cost lives.

These examples serve to underline Vladeck's central concern about the shadow docket. By making significant changes to the law without full briefing or argument, the Court has forsaken its responsibility to provide clear and transparent explanations for its decisions, all while it wields massive power over people's lives.

Unraveling the shadow docket's threats to the Supreme Court's credibility

The Supreme Court's legitimacy stands on shaky grounds, and a large part of this, as Vladeck asserts, is due to the damage inflicted by the shadow docket.

Certainly, it's not just about the growing frequency of these opaque rulings or their often-unexplained and contradictory nature. Neither is it merely about their notable alignment with particular political inclinations. Rather, it's this dangerous cocktail of circumstances that potentially compromises the Court's stature.

Even if you're in agreement with the decisions produced by the shadow docket, it's still a cause for concern. You see, the Court relies heavily on its moral authority and the perception of its impartiality to enforce its decisions — it doesn't wield any physical enforcement power like the executive branch or the police. Its judgments depend on the goodwill and respect of the other branches of government, and indeed, the people, to be put into action. And when its decisions appear to be influenced more by political leanings than by legal principles, that goodwill and respect erode, putting the Court's authority in jeopardy.

So, what can be done to mitigate the shadow docket's corrosive effects? Well, a good start would be dragging it out from the shadows and into the public's scrutiny. Fortunately, this is already happening. A host of journalists and legal commentators, both liberal and conservative, are shining a light on the Court's shadowy practices. One such critic is Donald Ayer, a conservative lawyer who served under George H. W. Bush. He openly criticized the Court's audacity for bypassing the established decision-making processes to issue radical decisions via the shadow docket in 2021.

Even within the Supreme Court, there is growing discontent over the shadow docket's operations. Justice Elena Kagan frequently reproaches the Court for its cursory review of significant cases decided via the shadow docket.

However, in Vladeck's eyes, Chief Justice John Roberts is the most crucial figure in challenging the shadow docket's operations. Although Roberts usually aligns with the conservative justices in conventional rulings, he has often differed in shadow docket cases. Between October 2020 and April 2022, Roberts sided with the liberal justices in dissent in seven shadow docket cases. In his dissents, he refrained from revealing how he would vote if these cases were heard under normal circumstances. However, he did express that he felt the shadow docket was not the appropriate avenue for the Court to rewrite the law or overturn precedents.

In consistently voting against his own policy preferences to critique the shadow docket's dubious modus operandi, Roberts is perhaps the only justice to assertively challenge the docket's problematic procedures.

The final take

The Supreme Court's escalating dependence on procedural verdicts, or shadow docket rulings, is steadily reshaping the legal and social fabric of America. These rulings, devoid of full-fledged arguments, explicit voting, or exhaustive opinions, often emerge anonymously and unelaborated, leaving observers grappling with their rationale and the decision-making process. More disconcertingly, these rulings seem to consistently favor the Republican party's political agenda — from green-lighting legally questionable policies of the Trump administration during ongoing litigation, to overruling lower courts on cases related to elections. These shadow docket decisions do not just challenge the norms of judicial transparency, but they pose a real threat to the very credibility of the Court itself.