Emergency Becomes Mainstream: The Supreme Court and the Shadow Docket
On September 29, the Senate Committee on the Judiciary held a hearing addressing the role of the Supreme Court’s so-called “shadow docket” in the case against Texas’s recent abortion ban, Whole Woman’s Health et al. v. Austin Reeve Jackson, Judge et al. For over two hours, the committee heard testimony on the Court’s 5-4 decision failing to block the new Texas law banning abortions after six weeks. While the recent abortion case has brought this emergency procedure to light, the shadow docket has been at play in many recent Supreme Court decisions. As a result, it has become a critical factor in discussing the politicization present in the United State's highest court of law.
In his testimony in Wednesday’s hearing, Professor Steven Vladeck explained the Supreme Court’s emergency procedure, which University of Chicago Law professor William Baude termed the “shadow docket” in 2015. The Court’s standard procedure, also known as the “merits” procedure, involves hearing an oral argument for the case and writing a signed opinion of the court explaining the reasoning for the decision being handed down. The shadow docket comprises the cases that the court decides on outside of the merits procedure. These decisions do not require briefings, issue no majority opinion, and often provide no indication of how individual justices voted on the issue. For example, in the case of the decision on Texas’s abortion law, the decision was handed down in the middle of the night.
Photo Courtesy: Claudine Hellmuth/ E&E News
While this emergency procedure is not “inherently pernicious,” according to Vladeck, he notes a distinct rise in the number of cases decided by this method since 2017. In addition, after the COVID-19 pandemic hit the United States in March 2020, the shadow docket by the Supreme Court again rose. Yet, Vladeck emphasizes its increased use throughout the Trump presidency, especially concerning significant cases that could significantly impact the public.
This includes Whole Woman's Health, which was decided on September 1 and several other high-profile cases that have recently been decided through the shadow docket. Earlier in September, the court required the Biden administration to reinstate former President Donald Trump’s “Remain in Mexico” policy, which returns asylum-seekers to Mexico while they await the decision of the US immigration court system. In August, the Court blocked the enforcement of eviction moratoriums due to COVID-19. While the abortion ban is the first case to receive significant national attention, this process has handed down significant decisions for the past three years.
Due to the current conservative composition of the court and the increasing use of the shadow docket to decide significant cases, there has been an outcry on the left that the conservative majority is using the shadow docket to push through their agenda. This is especially true in the recent Texas abortion decision. The Atlantic writer Adam Serwer described the court as “eager to nullify Roe v. Wade.” In the absence of a majority opinion, the liberal justices on the court issued several harsh dissents against the decision, with Justice Sonia Sotomayor stating in her dissent: “The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”
Justice Elena Kagan’s dissent more explicitly relied on criticism of the shadow docket procedure itself, stating: “Today’s ruling illustrates just how far the Court's shadow docket decisions may depart from the usual principles of the appellate process.” She takes issue with a ruling of “great consequence” being decided “without any guidance from the Court of Appeals,” without “bothering to explain its conclusion” in an opinion of the court. She finishes her brief dissent with the statement that “In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow- docket decision making—which every day becomes more unreasoned, inconsistent, and impossible to defend.”
On the other side of the political spectrum, conservative justices and politicians have jumped to the defense of the shadow docket procedure. In a speech on September 30 at the University of Notre Dame, conservative justice Samuel Alito argued that the term “shadow docket” was a “catchy and sinister” slogan, stating that politicians and the media were launching “damaging attacks'' against the Court. He emphasized that there is nothing new about the emergency application process. He defended the Court’s decision to use the emergency docket rather than a standard merits procedure in Whole Woman’s Health, as abortion providers sought relief from the court within hours of the new ban taking effect in Texas. While acknowledging the uptick in recent emergency decisions, Alito argued that this was due to increased emergency applications. He compared the criticism to the emergency room treating “too many accident victims.” In his member statement, ranking Sen. Chuck Grassley (R – IA) opened with a point parallel to Alito’s, stating: “Today, we are having a hearing because the Supreme Court did something very ordinary.”
While some maintain that the shadow docket is an ordinary procedure in no need of reform, Professor Vladeck suggests several potential solutions in his committee statement which could decrease the politicization of these decisions and lessen the likelihood of consequential Supreme Court decisions being handed down by emergency procedure. He argues that individual Circuit Justices should handle emergency applications rather than the whole Court. Additionally, he recommends amending the rules for more explicit guidelines on emergency Court procedures and adding emergency petitions on consequential cases to the regular certiorari pool. This would allow the cases to enter the pool for regular merits review as well as the emergency procedure, allowing the case to receive the time and attention normally given to appeals to the Supreme Court.
Since the shadow docket decision in Whole Woman’s Health, the debate has been raging in the media and among politicians on whether the shadow docket represents a conservative take over of court procedure or a normal Court process. The increase in the prevalence of the shadow docket could simply be due to the COVID-19 pandemic and the higher number of requests for immediate relief from consequential laws. Whether injurious or standard, the shadow docket highlights an important power of the Court that could substantially influence citizens’ lives outside of standard Court procedure. Regardless of political affiliation, understanding the implications of the shadow docket is vital as increasing numbers of noteworthy Supreme Court decisions are handed down through this emergency mechanism.