The rise of the Republican Supreme Court's anti-democratic, opaque shadow docket

In recent years, the radical right Republican Supreme Court has been increasingly relying on the shadow docket to advance the Republican's authoritarian anti-democracy, anti-transparency agenda. The shadow docket is a way for the court to decide issues while hiding both (i) the legal analysis behind the decision, and (ii) the judge's vote count. The shadow docket is an effective mechanism to keep the public from knowing what the court is actually doing and why.

NPR focused on a recent book, The Shadow Docket: How the Supreme Court uses stealth rulings to amass power and undermine the republic, by legal scholar University of Texas law professor Stephen Vladeck. NPR writes: 

Justice Samuel Alito hates the term shadow docket, and gave an hour-long speech in 2021 at Notre Dame, suggesting that journalists and politicians have seized on it to wrongly portray the court as "sneaky," "sinister," and "dangerous."

Nonetheless the term has stuck.

Professor Vladeck argues that the court has only itself to blame.

"What impelled me to write the book is that over the last six years, we've seen the shadow docket become a lot less boring because the Supreme Court, and especially the conservative majority, has been using unsigned and unexplained orders to a degree and in ways which really have no precedent in the court's history," he said in an interview with NPR.

These cases are brought to the court by a state, or a company, or a person who has lost in the lower courts, often at an early stage, and that loser is now asking the Supreme Court to block the lower court order while the case proceeds through the lower court appeals process, which typically takes many months.

Up until relatively recently, these shadow docket actions were quite rare. The statistics tell the story, statistics compiled by Vladeck. During the 16 years of the Bush and Obama administrations, the federal government, the most frequent litigant in the Supreme Court, only asked the justices for emergency relief eight times--or on average once every two years. The two administrations together got what they wanted in only four of the eight cases, and in all but one of them the court spoke with one voice, and no dissent.

But in the Trump administration, and with a newly energized conservative majority on the court, the picture changed dramatically. In just four years, the Trump Justice Department asked the court for emergency relief an astounding 41 times, and the court actually granted all or part of those requests in 28 of the cases.  

'The dirty secret'

[The court says it will fully and transparently consider a shadow docket case later when it comes before them, but that is a dirty secret lie.]

But "the dirty secret is that later never comes," he says. "By the time the border wall case," or "all kinds of other challenges to Trump policies make their way back to the Supreme Court, at the far end of the normal litigation process, President Biden is in office and those policies have been discontinued, and the cases are thrown out."

That pattern, he says, was repeated over and over again, thus allowing Trump "to carry out policies that lower courts had held to be unlawful because the Supreme Court, through unsigned and unexplained orders" said, in effect, 'Go ahead President Trump, we'll deal with this later.'"

Vladeck's point is not that the Supreme Court was necessarily wrong, but that its unexplained shadow docket rulings today are both "inscrutable, and inconsistent." The patterns that emerge, he maintains, put the court in an "exceptionally unflattering light."

"The more you look at the body of work, the more it looks like the best explanation for when the court is intervening and when it's not, is partisan politics and not neutral substantive legal principles," he contends. 

No opinions to analyze

Vladeck points to a speech Justice Amy Coney Barrett gave in 2021, in which she assured the audience that the current court "is not composed of partisan hacks" and urged people to "read the opinions." But as Vladeck observes, "What's remarkable about the shadow docket is that so often the court is handing down rulings with massive impacts in which there's no opinion to read."