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In Allen v. Milligan (2023), the Supreme Court ruled that a redistricting plan adopted by the State of Alabama prior to the 2022 congressional midterm elections likely violated Section 2 of the Voting Rights Act. The 5-4 majority affirmed a District Court’s findings that (1) the plan impermissibly undermined the voting rights of African Americans residing in Alabama and (2)  the redistricting map must be redrawn. Prior to the ruling, however, the Supreme Court gave the green light to Alabama to use the map for the 2022 Midterms, overriding the concerns of both the District Court and the map’s challengers.

This green light was granted via the Court’s emergency docket, also known as the “shadow docket”. In what has become an increasingly familiar move, the Supreme Court paused the Alabama District Court’s injunction on the map via an unsigned and unexplained order. The result was that African Americans in Alabama were forced to vote under an illegal districting scheme. Put otherwise, the Court had gone out of its way to intervene, and without explanation, permitted Alabama to institute a suspect voting scheme for a congressional election.

In recent years through its shadow docket cases, the Court has ruled on issues ranging from religious gatherings during the pandemic to Purdue’s Pharmaceutical’s bankruptcy. These cases have wide-reaching and substantive impact on the day-to-day lives of American denizens, yet these decisions are often made without any explanation. Such procedures, when wielded as they are now, challenge the common notions of our judicial system. Ultimately, it us up to Congress to institute much needed Court reforms.

 

What is the Shadow Docket?

When the public hears about the Supreme Court, the news most likely comes from a ruling on a controversial issue like gun rights or abortion. These cases come from the Court’s regular docket, and they are resolved only after months of briefing, arguments, and consideration among the justices. In contrast, cases which land on the emergency docket (“shadow docket”) are cases in which a party is asking for an emergency intervention by the Court. For example, as with the case introduced above, Alabama, through the shadow docket, asked the Court to pause the Alabama District Court’s injunction. They argued that the District Court had left “Alabamians [to] suffer the constitutional harm of being assigned to racially segregated districts,” and as such required immediate intervention in light of the upcoming midterm elections. Apparently agreeing with Alabama, but without any hearing, arguments, or explanation, the Court disturbed the lower court’s ruling and allowed Alabama’s map to stand.

 

A Brief History

Stephen Vladeck, an American constitutional law scholar at the University of Texas Law School, recently published a book titled The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, which provided a detailed history of the Supreme Court’s shadow docket. He begins in 1925 by recounting the history of how the Chief Justice of the Supreme Court and former President, William Howard Taft, lobbied Congress to expand the Court’s power to decide what cases it appeared before it. This power is formally known as the power to grant a “writ of certiorari.”

According to Vladeck, Taft’s motivation was to construct a modern Supreme Court in his own vision, one which was highly independent and distinct from other courts in the country. Moreover, he had the political support. As a practical matter, the Court was struggling under a crushing workload; with over 1,800 pending appeals, the Court was estimated to be three years behind. This backlog, in part, could be resolved by allowing the Court fuller discretion over their docket. Between Taft’s efforts and these circumstances, the Court was granted that discretion. Congress would pass the Judiciary Act of 1925, paving the way for the modern Supreme Court and the shadow docket.

 

Granting Cert.: How “discretion” translates to the “shadow docket” 

Whenever the Court renders a decision, there are potentially immense consequences for law and policy. In consideration of these potential consequences, discretion might appear to be warranted; we may appreciate the Court’s to sidestep less than optimal cases. However, even in a decision to not grant certiorari can have significant policy implications. Take, for example, a last-minute appeal from an inmate on death row. Prior to the COVID-19 pandemic, these were the types of cases which most often appeared on the Supreme Court’s emergency docket. Whether the Court granted or denied that appeal would almost certainly reflect the inmate’s last resort. Accordingly, the discretion to grant or deny a ruling has life and death consequences. Similarly, consider the Court’s 2021 refusal to grant emergency relief to plaintiffs attempting to block Texas six-week abortion ban. This law was inarguably in conflict with Supreme Court precedent, yet the Court allowed the law to go into effect, upending abortion policy in Texas, the U.S.’s second most populous state. There is also the Alabama ruling from above.

 

What’s the issue?

The issue is that the shadow docket undermines the legitimacy of the Supreme Court by challenging the public’s understanding of how the court ought to be exercising its power.

The common understanding of the U.S. branches of government is that the Supreme Court is different from the other branches of government –– it is substantively weaker. Remember, Congress controls the purse-strings, and the President is the Commander-in-Chief. When Congress doesn’t like something, they simply choose not provide funding; when enforcing the law, the Chief Executive wields the most powerful military in the world. The Supreme Court, in contrast, carries nothing but its pen. Its strength comes from the public’s appreciation for the norms it upholds and the reasoning it puts forth. By the Court’s very nature, parties –– often including the Executive Branch –– are coming before it with ardent disagreements over what laws ought to mean. Yet, when one party loses (even when wielding the world’s most powerful military), their lawyers will simply read the opinion and move on to the next case. In other words, even when there are big stakes and disagreement, parties rely on the careful writing and stated reasoning of the justices to guide the law.

The shadow docket flies in the face of this logic. Specifically, the shadow docket provides the court with discretion to not exercise its reason. Decisions under the shadow docket do not need explanations or even signatures. There is no requirement for the people to know who voted or for what reason. Through this practice, the Court leaves itself open to the same criticism lodged against politicians –– selfishness, corruption, and power hungry. For without even an opinion to offer, for what reason does the public have to listen to the Court?

 

Congress Has the Power

Congress has the power to fix this problem. Just as they granted the Supreme Court the power of discretion, they can also revoke or modify it. Reforms could be presented in a number of ways. First, Congress may simply redefine the Court’s appellate jurisdiction and disallow emergency appeals. Under the same power, Congress could create a separate process for emergency hearings, guaranteeing certain procedures such as a right to a hearing. In addition to these reforms, Congress could change the number of Justices on the Supreme Court, ensuring there are a sufficient number to fully hear any emergency applications which may come to it. Overall, Congress has wide latitude to institute any number of reforms to help the Court in managing its caseload and ensuring that all cases be heard under thoughtful and meaningful procedure.

 

Suggested Citation: Garry Blum, Rise of the Shadow Docket, Cornell J.L. & Pub. Pol’y, The Issue Spotter (October 23, 2023), http://jlpp.org/blogzine/rise-of-the-shadow-docket/.