What Is A Shadow Docket and How It is Showing Our Highest Court Is Failing Us

Texas’ recent abortion ban has turned the country on its head. Pro-life and pro-choice arguments run rampant. Women’s rights centers are scrambling to advocate.

And amidst all of it, a more sinister issue hides in plain sight. Texas women’s facilities asked the Supreme Court to intervene. But by way of shadow docket, the Court refused.

As its name would suggest, shadow dockets are murky at best. Yet the highest Court in our nation seems to be using them with greater frequency.

Because of this, many legal experts fear what the future of our country holds.

What Is A Shadow Docket?

Law professor William Baude coined the term “shadow docket” in 2015. The term refers to decisions made by the Supreme Court which “defy its normal procedural regularity.”

Normally, the Court receives full briefings, hears oral arguments, and delivers signed opinions on a case. These are called “merit cases.”

However, via shadow dockets, the Court decides cases quickly with little to no public transparency or deliberation.

In the event of an emergency, the shadow docket allows the Court to act swiftly. For example, the Court has used shadow dockets for stays of execution or halts on overseas bombing.

21st Century Shadow Dockets

Both of those examples occurred in the mid-20th century. Since then, the Court has increased the number of cases decided via shadow docket.

CBS News reports that the Trump administration sought emergency relief through shadow dockets 41 times. The Bush and Obama administrations combined issued only eight. Of Trump’s 41 requests, the Court granted 28.

In recent years, the Court has used shadow dockets to rush the executions of 13 federal inmates. Other decisions involved a 2017 Muslim travel ban and a 2019 transgender ban in the military.

2019 also marked the lowest number of merit decisions issued by the Court since the Civil War. The Court’s typical 60-70 merit cases shrunk to just 53.

And in 2021, the High Court issued yet another shadow docket that directly threatens women’s rights.

The Texas Abortion Ban, Explained

Texas’ new law bans abortions after six weeks from the patient’s last period. This is before most patients would realize they’re pregnant. The ban makes no exceptions for rape or incest.

Further, under this new law, civilians are incentivized to sue anyone aiding in an abortion. This $10,000 bounty is on the heads of doctors, nurses, and even family members who offer to help pay or give the patient a ride to the clinic.

Texan health facilities issued a request to the Supreme Court to intervene under Roe v. Wade. By way of a shadow docket issued just before midnight, the Court refused to do so.

The Court’s final vote was 5 to 4. All four dissenting justices filed opinions.

Casting Roe V. Wade Into The Dark

“The court’s order is stunning,” Justice Sotomayor wrote in her dissent. “A majority of justices have opted to bury their heads in the sand” when presented with a law “engineered to prohibit women from their constitutional rights.”

Moreover, Justice Kagan said the ruling “illustrates just how far the Court’s shadow-docket decisions may depart from the usual principles of the appellate process.”

“The majority’s decision is emblematic of too much of this court’s shadow docket decision making,” Kagan continues. “Which every day becomes more unreasoned, inconsistent, and impossible to defend.”

Certainly, the heavy significance of Roe v. Wade has thrust shadow dockets into the light. Indeed, overturning Roe v. Wade would strip women of their right to medical care.

“Any decision that looks like it’s gutting Roe is going to get a lot of attention,” explains Jessica Levinson. “Overturning Roe without the normal procedures…highlights how robust the shadow docket has become.”

Updating The Nation’s Highest Court

The Supreme Court is the highest tribunal in the nation. In other words, the buck stops with them.

The idea that the Court would be making unexplained decisions is concerning. In practice, there should be no legal opinion more trustworthy. In reality, shadow dockets are chipping away at that integrity.

It’s not just the liberal justices who have spoken out about the conservative majority. Both the House and Senate Judiciary committees have as well. Similarly, legal experts outside of D.C. are starting to speak out.

Law professor Steve Vladeck testified about the shadow docket before Congress. The Texas professor said the lack of explanation from the Court is, on the one hand, a transparency issue.

But it is also a “crucial shift. The Court is beginning to treat some of its orders as precedential. If they’re precedential, they ought to be explained,” Vladeck says.

Law professor Richard Pierce wrote an article on the subject published by the Administrative Law Review. In the article, he proposes a solution.

“The Court should not issue [major decisions] without explaining its actions,” Pierce writes. “Such a change in practice would add to the workload of justices.”

“But that is a small price to pay to reduce the adverse effects of a large and growing shadow docket that is rapidly eroding one of the most important elements of the rule of law—the duty to engage in reasoned decision making.”

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