Earlier this week, the Supreme Court gave the go-ahead for a business-friendly and anti-environment Trump-era regulation. That this conservative Supreme Court ruled in this way is par for the course. But what was somewhat unusual about the ruling was that the court used what is called its “shadow docket” to do so. This secretive, irregular, and unreasoned ruling from the Supreme Court has unfortunately become more common in the past few years.
To understand the “shadow docket” and what is so problematic about the Supreme Court’s use of it, you have to first think about how the court typically decides its cases. For those cases, after two lower courts have ruled in the case, a party appeals to the Supreme Court. There are briefs from both sides arguing whether the Supreme Court should take the case. Then, if the Supreme Court decides to hear the case, the parties file new briefs asking the court to rule in their favor. Other people and groups can also file what are called “amicus briefs” giving their outside view on the matter. The court then hears oral argument in the case, where the lawyers argue their position to the Justices. Then, after deliberating on the matter and then taking several months to reason through the legal issues, the court renders its ruling accompanied by lengthy opinions explaining the basis of the ruling and any disagreements the Justices might have.
This normal order of things takes time, sometimes multiple years, but that time is the result of a transparent process that allows for reasoned decision-making based on the full participation of the parties and even the public. It is this orderly process that, in theory, gives the court its legitimacy. And it is the court’s legitimacy that makes people in this country follow what the court says and respect its decisions, even if they disagree with them.
The shadow docket runs afoul of everything that gives the Supreme Court its legitimacy in the normal process. At its least controversial, the shadow docket is used for cases that present true emergencies. Think a death row appeal where the prisoner is going to be executed within hours if the court doesn’t act. The shadow docket allows the court to decide true emergencies like this without the lengthy process that ordinary cases take. For these types of cases, the shadow docket makes sense.
However, as scholars have documented, since the start of the Trump presidency, the Supreme Court has been using the shadow docket to decide high profile controversial issues that do not present the same level of emergency as an impending death sentence. And for this growing number of cases, the court rushes everything and changes almost all of its procedures.
Take the environmental case decided earlier this week as an example. A federal trial court ruled against the Trump regulation on October 21, 2021. The case was appealed, and on February 24, the federal appeals court ruled that, while the case was being decided, the lower court order would remain in place. Without giving that lower court an opportunity to actually decide the case, the parties appealed to the Supreme Court on March 21. Over the course of the next 9 days, the parties filed three more briefs. Then, without any argument, the Court ruled on April 6 that the Trump regulation should be reinstated. The Court’s unsigned ruling stated nothing other than the fact that it was reinstating the regulation while the case was being appealed.
In almost every way, this is different than the normal way of doing things. The lower appeals court never got an opportunity to decide the case first. Only one set of briefs was filed. There was no opportunity for briefs from the general public. The Justices never heard oral argument. They didn’t meet to deliberate over the matter. There was no opinion explaining the ruling. No one Justice took responsibility for the Court’s reasoning. And the decision was made a mere 16 days after the initial filing with the Court.
This is about as far from reasoned analysis and decision making as the Justices can possibly get. In dissent, Justice Elena Kagan was explicit in her criticism of what the Court did here, stating that the ruling “renders the Court’s emergency docket not for emergencies at all. The docket becomes only another place for merits determinations — except made without full briefing and argument.”
Of note here is that Chief Justice John Roberts, one of the court’s conservatives, joined in this dissent. In agreeing publicly with this sentiment, the court’s institutional leader is making a bold statement, agreeing with the many critics of the court’s shadow docket practices. Those critics have attacked the use of the shadow docket for undermining the court’s legitimacy, rushing important decisions, hiding the vote among the Justices, issuing decisions in the middle of the night, and deciding hugely important legal issues with minimal reasoning — if any at all. Kagan’s dissent explicitly nods in the direction of these critiques, and Roberts apparently agrees.
However, there is nothing he can do about it, because the five more conservatives Justices on the Court are moving full speed ahead using the shadow docket. And, predictably, they are using it to check off almost every item on the conservative legal agenda. Beyond ruling for an anti-environment regulation in the case discussed here, they have also approved abortion restrictions, limited COVID precautions, allowed religious exemptions to generally applicable rules, given the green light to executions, reinstated anti-immigrant policies, and more.
In other words, this ultraconservative Supreme Court is exploiting a mechanism that used to be reserved for the most emergent matters that come to the Court to further stamp its right-wing view on American law and society. And it is doing so mostly in the dark.