The shadow docket: Undermining democracy, the rule of law, civil liberties and the separation of powers

The Throughline program that NPR broadcasts did a deep dive into the USSC's increasing reliance on the shadow docket to quietly reshape American law and society. Tactics like handing down shadow docket decisions at 2 or 3 am minimizes public scrutiny. There is usually no explanation at all and no public argument. The public has no way to know how or why a law is being applied. The USSC now acts with nearly no constraints by Congress or a president. 

An analysis several months ago by two legal scholars led them to conclude that at least since ~2000, the USSC has slowly been accumulating powers taken from Congress and the Executive Branch, including federal agencies. This 49 minute broadcast reinforces that analysis. This dives into the history and context that got us to the point where the USSC is now capable of overthrowing the US government and doling so legally on the basis of its own decisions.

Throughline comments:

Today, the vast majority of the Court's work actually happens out of the public eye, on what's become known as the shadow docket. The story of that transformation spans more than a century, and doesn't fall neatly along partisan lines. Today on the show: how the so-called court of last resort has gained more and more power over American policy, and why the debates we don't see are often more important than the ones we do.

Wikipedia describes what the shadow docket is:

The shadow docket (or non-merits docket) refers to motions and orders in the Supreme Court of the United States in cases which have not yet reached final judgment, decision on appeal, and oral argument. This especially refers to stays and injunctions (preliminary relief), but also includes summary decisions and grant, vacate, remand (GVR) orders. The phrase "shadow docket" was first used in this context in 2015 by University of Chicago Law professor William Baude.

The shadow docket is a break from ordinary procedure. Such cases receive very limited briefings and are typically decided a week or less after an application is filed. The process generally results in short, unsigned rulings. On the other hand, merits cases take months, include oral argument, and result in lengthy opinions detailing the reasoning of the majority and concurring and dissenting justices, if any.  

The term has been used by some justices themselves, with Justice Elena Kagan calling the Court's "shadow-docket decision-making" "every day becoming more unreasoned, inconsistent, and impossible to defend" in a dissent to a denial of an application for injunctive relief in the case Whole Woman's Health v. Jackson (2021). The phrase itself has been criticized by Justice Samuel Alito, who called it "sinister" in a university speech and saying it was "used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways", and by senators, with Ted Cruz, a former solicitor general of Texas, saying: "Shadow docket, that is ominous. Shadows are really bad, like really, really bad."

A transcript of the broadcast is here (and here). A couple points are important to make:

• The modern shadow docket grew out of a federal death penalty case in 2020. Originally, it rose to power under FDR in the 1940s. There, a radical right Supreme Court was bitterly opposed to the New Deal. That USSC was shredding the New Deal in shadow docket decisions. FDR threatened to expand the number of justices on the USSC to get New Deal laws implemented. That scared the radicals off and the shadow docket faded into insignificance until recently.

• At one time, congress completely controlled which cases the USSC would hear. That gave congress a lot of power over the court. President Taft was a life-long lawyer who wanted (i) to be a USSC judge, and (ii) give the court a lot more autonomy, which would give it a lot more power. After he was out of office, Taft because the Chief Justice of the USSC. He lobbied congress for more power. He finally got congress to give the USSC the power of certiorari, i.e., the power to choose which cases to accept and which to reject. At that point, the selection of cases to be heard became a black box. The court did not need to explain why it would choose to accept or reject a case. The Supreme Court gained the power to inject itself into virtually every contentious public policy dispute. 

• The USSC used an emergency order in 1961 to allow the first Black student, James Meredith, to attend Ole Miss university. As usual the emergency order was written by a single justice, Hugo Black in this instance. However, the practice of a single justice writing emergency orders ended in 1976 when the federal death penalty was reinstituted. All justices had to be involved in emergency orders after that. But the court simply said that if there is an order of the full Court, they're not going to explain themselves. And so the Court stopped providing explanations for grants or denials of emergency relief. Before then a single justice usually would have explained why a court order was made. In essence, the USSC was moving further and further from transparency. Opacity is where corruption, authoritarianism and base human impulses thrive, e.g., bigotry, racism and extremism. 

A legal scholar, Steven Vladeck explains his vision of what was going on as opacity displaced transparency (adapted from the transcript):

So I have a slightly more cynical take. You could argue that these procedural shifts, although they could be justified on sort of efficiency and like collegiality metrics, they really were a way of limiting the ability of those justices who are most anti-death penalty to speak for the full Court. And you see, started in the eighties, like a flurry of 54 decisions where the Court is, you know, turning away death penalty appeal.

That's extremely dark. I just wanna sit with that for a second because that's extremely dark. It was a, it was essentially a more actually efficient way to enact death. It's not just that we start to see the Court denying requests for stays from inmates on a much more frequent basis. The even darker part is starting in 82 or 83.

It shouldn't be easy for the state to kill someone like it should be a process and they should have to really be able to prove it et cetera. But essentially you're saying that that lower Court who's like, oh, there's some problems with this. We need to stop it. No, forget their decision. Like, let's just go ahead and do it. Well, it's, it's worse than that. 

I mean like I've got no problem with the Supreme Court saying, hey, lower Court, we disagree with you. The crazy part here is the Court is granting emergency relief. The Court is saying states are irreparably harmed if they have to wait to execute someone.