House testimony on the shadow docket

THE SUPREME COURT’S SHADOW DOCKET
Hearing Before the Subcommittee on Courts, Intellectual Property,
and the Internet of the House Committee on the Judiciary
Thursday, February 18, 2021
Testimony of Stephen I. Vladeck
Charles Alan Wright Chair in Federal Courts
University of Texas School of Law
Chairman Johnson, Ranking Member Issa, and distinguished
members of the Subcommittee:
Thank you for the invitation to testify today. As you know, I hold
the Charles Alan Wright Chair in Federal Courts at the University of
Texas School of Law, where my research and writing focus on the
intersection of constitutional law, national security law, and the federal
courts. In addition to teaching about the Supreme Court, I also practice
before it (I’ve argued three cases over the last four Terms), and help
CNN cover it (as its Supreme Court analyst).
In light of that background, I’m especially heartened that the
Subcommittee is taking a close look at the Supreme Court’s so-called
“shadow docket” — which has become such an increasingly significant
and visible part of the Justices’ workload. To help illuminate the
conversation, my testimony today has five objectives: (1) To introduce
the shadow docket and describe what it comprises; (2) to document the
rise in significant shadow docket rulings since 2017; (3) to identify some
of the possible explanations for this uptick; (4) to outline why, in my
view, the rise of the shadow docket is not a salutary development; and
(5) to sketch out some potential reforms that both the Court and
Congress might consider.
I.
WHAT IS THE “SHADOW DOCKET”?
The term “shadow docket” was coined by University of Chicago
law professor Will Baude in 2015 as a catch-all for a body of the
Supreme Court’s work that was, to that point, receiving virtually no
academic or public attention. 1 Unlike the Court’s “merits” docket, which
includes the approximately 60–70 cases each Term in which the
Justices hear oral argument and resolve the dispute in a signed
“opinion of the Court,” the “shadow” docket comprises the thousands of
other decisions the Justices hand down each Term — almost always as
“orders” from either a single Justice (in their capacity as “Circuit
Justice” for a particular U.S. Court of Appeals) or the entire Court. So
understood, although the term itself dates only to 2015, the shadow
docket has been around for as long as the Supreme Court.
1. See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. &
LIBERTY 1, 3–5 (2015).
1
Although it’s only of recent vintage, the “shadow” metaphor is
entirely appropriate given the contrast between such orders and merits
decisions. The latter receive at least two full rounds of briefing; are
argued in public at a date and time fixed months in advance; and are
resolved through lengthy written opinions handed down as part of a
carefully orchestrated tradition beginning at 10:00 a.m. EST on preannounced “decision days.” It is impossible to miss these 60–70 cases,
which, on top of the attention they receive from the Court, also tend to
be the subject of numerous professional and academic Term “preview”
events (before they’re argued) and “recap” events (after they’re decided).
In contrast, rulings on the “shadow docket” typically come after no
more than one round of briefing (and sometimes less); are usually
accompanied by no reasoning (let alone a majority opinion); invariably
provide no identification of how (or how many of) the Justices voted;
and can be handed down at all times of day — or, in some exceptional
cases, in the middle of the night. Owing to their unpredictable timing,
their lack of transparency, and their usual inscrutability, these rulings
come both literally and figuratively in the shadows. 2
These shortcomings aside, scholars and court-watchers did not
pay much attention to the shadow docket historically, because nearly all
of the Justices’ decisions on the shadow docket were anodyne — denying
petitions for certiorari in un-controversial cases; denying applications
for emergency relief in cases presenting no true emergency; granting
parties additional time to file briefs; dividing up oral arguments; and so
on. That’s not to say that there were never controversial rulings on the
shadow docket; from the execution of the Rosenbergs 3 to Justice
Douglas halting Nixon’s bombing of Cambodia 4 to the stay of the
Florida recount in what became Bush v. Gore, 5 there certainly have
2. Unlike merits decisions, shadow docket rulings can appear in any of four different
places on the Supreme Court’s website — as an “opinion of the Court”; an “opinion
relating to orders”; a published order of the Court; or an unpublished order by an
individual Justice that is reflected only on the Court’s docket. This is a minor point, to
be sure, but it’s even harder to find these orders relative to merits opinions.
3. See Rosenberg v. United States, 346 U.S. 313 (Douglas, Circuit Justice 1953).
4. See Holtzman v. Schlesinger, 414 U.S. 1316 (Douglas, Circuit Justice, 1973).
5. See Bush v. Gore, 531 U.S. 1046 (2000) (mem.).
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been significant rulings on the shadow docket across the Court’s
modern history.
But the shadow docket rulings that provoked public attention
were sufficiently few and far between that scholarly focus tended to
focus on their substance — rather than their procedure. At most, each
Term tended to bring with it perhaps three or four significant shadow
docket rulings, and a majority of those involved either election-related
disputes or last-minute appeals before executions were carried out.
And because the Court so rarely settled divisive disputes through
the shadow docket (outside of the election and death penalty contexts,
anyway), the most frequent litigants before the Court did not tend to
rely upon it. To take just one example, from 2001–17, across two very
different two-term presidencies, the Justice Department only sought
emergency relief from the Supreme Court (a common source of shadow
docket orders) eight times — once every other Term. 6 Although the
Court granted four of those requests and denied four, 7 only one of the
eight orders in those cases provoked any of the Justices to publicly
dissent. 8 Compared to what we have seen over the past four years, the
contrast is striking.
II.
THE RISE OF THE SHADOW DOCKET SINCE 2017
There’s no perfect way to measure the rise of the shadow docket
over the past four years. It’s a large dataset to begin with, and it’s often
hard to separate out the significant rulings (which are always a
relatively small percentage of the total number of orders the Court
hands down) from the insignificant ones — at least quantitatively. That
said, there is simply no dispute, even anecdotally, that the shadow
6. Stephen I. Vladeck, The Supreme Court, 2018 Term — Essay: The Solicitor General
and the Shadow Docket, 133 HARV. L. REV. 123, 162 tbl.3 (2019).
7. See Veasey v. Perry, 135 S. Ct. 9 (2015) (mem.); United States v. Comstock, No.
08A863 (Roberts, Circuit Justice, Apr. 3, 2009) (mem.); Dep’t of Health & Human Servs.
v. Alley, 556 U.S. 1149 (2009) (mem.); Gates v. Bismullah, 554 U.S. 913 (2008) (mem.);
Rumsfeld v. Rell, No. 05A231 (Ginsburg, Circuit Justice, Sept. 8, 2005); Ashcroft v. O
Centro Espirita Beneficente Uniao do Vegetal, 543 U.S. 1032 (2004) (mem.); Bush v.
Gherebi, 540 U.S. 1171 (2004) (mem.); Ashcroft v. N. Jersey Media Grp., 536 U.S. 954
(2002) (mem.).
8. Veasey, 135 S. Ct. at 10 (Ginsburg, J., dissenting).
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docket has become increasingly prominent over the past four years. In
this part, I first identify at least six distinct respects in which the past
four years have seen qualitative changes in the scope and size of the
shadow docket before turning to possible explanations for the uptick.
a. DESCRIBING THE RISE OF THE SHADOW DOCKET
First, excepting ordinary grants of certiorari, there are a lot more
cases in which the Justices are using the shadow docket to change the
status quo — where the Court’s summary action disrupts what was
previously true under rulings by lower courts. Consider, in this respect,
one of the Court’s most recent high-profile shadow docket rulings — the
order handed down at 10:44 p.m. EST on Friday, February 5 in “South
Bay II,” in which the Court enjoined most of California’s COVID-based
restrictions on indoor religious services. 9 Neither the district court nor
the Ninth Circuit had blocked California’s rules, so it was the Justices,
in the first instance, who put them on hold.
In both absolute and relative terms, there have been far more of
these kinds of rulings in cases seeking emergency relief — granting
injunctive relief; granting stays of lower-court rulings; or, as in a
surprising number of capital cases, lifting stays of lower-court rulings
— than at any prior point in the Court’s history. In that respect, part of
the significance of the shadow docket of late has been in how often the
Justices are using it to disrupt the state of affairs as a case reaches the
Court.
Second, perhaps most dramatically, the shadow docket has seen a
remarkable increase in action from the Solicitor General. In contrast to
the eight applications for emergency relief filed by the Justice
Department between January 2001 and January 2017, the Trump
administration filed 41 applications for such relief over four years —
asking the Justices to intervene at a preliminary stage of litigation
more than 20 times as often as either of its immediate predecessors. 10
Emergency applications became such a central feature of the Office of
9. S. Bay United Pentecostal Church v. Newsom (“South Bay II”), No. 20A136, 2021
WL 406258 (U.S. Feb. 5, 2021) (mem.).
10. For the most recent data, see Steve Vladeck (@steve_vladeck), TWITTER (Jan. 20,
2021, 11:21 AM), https://twitter.com/steve_vladeck/status/1351927798882066436.
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the Solicitor General during the Trump administration that it even led
to a restructuring of the Office’s staff. 11
What’s more, the dramatic increase in applications paid dividends.
Not counting one application that was held in abeyance and four that
were withdrawn, the Justices granted 24 of the 36 applications in full
and four in part. Even among the eight applications that were denied in
full, only a few were denied with prejudice. Thus, not only was there a
dramatic increase in the demand for shadow docket rulings from the
party often referred to as the Court’s “Tenth Justice,” but the Justices
— or at least a majority of them — have been willing to go along with it.
Third, both in cases in which the Solicitor General sought
emergency relief and otherwise, the shadow docket has become far more
publicly divisive in recent years. I already noted that only one of the
eight applications filed by the Bush 43 or Obama Justice Departments
provoked any public dissent. In contrast, 27 of the 36 applications from
the Trump administration on which the Justices ruled provoked at least
one Justice to publicly dissent.
And expanding the focus beyond applications from the federal
government, there has been a sharp increase in the number of shadow
docket rulings that have provoked four public dissents. During the
October 2017 Term, for instance, there were exactly two such rulings. In
the next two Terms, there were 20. Indeed, during the October 2019
Term, there were almost as many public 5-4 rulings on the shadow
docket (11) as there were on the merits docket (12). 12
Even so far this Term (the Court’s first without Justice Ginsburg),
there have already been two shadow docket rulings that were publicly
5-4. 13 What’s more, virtually all of the divisions in these cases are
11. See Steve Vladeck, Symposium: The Solicitor General, the Shadow Docket, and the
Kennedy Effect, SCOTUSBLOG, Oct. 22, 2020, https://www.scotusblog.com/2020/10/
symposium-the-solicitor-general-the-shadow-docket-and-the-kennedy-effect/.
12. See Steve Vladeck, The Supreme Court’s Most Partisan Decisions Are Flying
Under the Radar, SLATE, Aug. 11, 2020, https://slate.com/news-andpolitics/2020/08/supreme-court-shadow-docket.html.
13. See Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per
curiam); Agudath Israel v. Cuomo, No 20A90, 2020 WL 6954120 (U.S. Nov. 25, 2020)
(mem.).
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occurring along conventional ideological lines — with the progressives
on one side, one bloc of conservatives consistently on the other, and one
or two of the conservative Justices occasionally voting with the
progressives. None of the “strange bedfellows” that we sometimes see on
the merits docket have shown up on the shadow docket in recent years;
the divisiveness of the shadow docket has been even more
homogenously ideological than the divisiveness of the merits docket.
Fourth, although it has long been a criticism of the shadow
docket, especially denials of certiorari, that the public usually has no
idea how many Justices voted for a specific outcome (let alone which
Justices), that concern has become that much more pronounced as the
public tally has increasingly reflected multiple dissents. Consider, in
this respect, the Court’s order last Thursday night refusing Alabama’s
request to vacate a lower-court injunction in order to allow a scheduled
execution to proceed. 14 Four Justices concurred in the order — and
joined an opinion explaining the basis for their concurrence. 15 Only
three Justices noted dissents. 16 So we know that either (or both) of
Justices Alito and Gorsuch joined the majority to block the execution.
But we have no idea which of them, or if they both did, or why. Stealth
votes aren’t new, but as the shadow docket grows in both absolute
terms and divisiveness, the stealth votes are increasingly the
dispositive ones — which, among other things, complicates efforts to
decipher the potential impact of the Court’s ruling beyond the instant
case.
Fifth, accompanying the rise of the shadow docket has been the
rise of new (and unusual) forms of relief. Consider again the South Bay
II decision handed down on February 5, in which the Court enjoined
California from enforcing at least some of its COVID-related
restrictions on indoor worship services. The following Monday, the
Court issued an order in another California case in which a plaintiff
had sought an injunction — treating the application for an injunction as
a petition for a writ of certiorari before judgment (itself an unusual
14. Dunn v. Smith, No. 20A128, 2021 WL 517473 (U.S. Feb. 11, 2021) (mem.).
15. Id. at *1 (Kagan, J., concurring).
16. Id. at *2 (Kavanaugh, J., dissenting).
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procedural vehicle) 17 and issuing a “GVR,” i.e., granting the petition;
vacating the district court’s order; and remanding “for further
consideration in light of” South Bay II — itself an unsigned order that
was not accompanied by an opinion of the Court. 18 What about the
Court’s summary ruling in South Bay II was the district court supposed
to consider? To similar effect, on January 15, the Court granted another
petition for certiorari before judgment in a federal death penalty case —
and, unlike the “GVR” order in Gish, summarily reversed the district
court on the merits, 19 something else that, at least according to my
research, it has never before done in that posture (cert. before
judgment).
Finally, as the Gish order makes clear, the dramatic increase in
significant shadow docket rulings has brought with it novel questions
about how lower courts are supposed to give precedential effect to
rulings that the Supreme Court has itself suggested are of little
precedential value. 20 For instance, a panel of the Fourth Circuit split
sharply in August 2020 over what to make of how the Supreme Court
had handled emergency applications in different cases brought by
different parties challenging the same underlying governmental
policy. 21 And D.C. district judge Trevor McFadden has even drafted a
17. Unlike cases arising in state courts, the Supreme Court may grant a petition for
certiorari to review a lower federal court decision as soon as that case is “in” the Court
of Appeals. See 28 U.S.C. § 1254(1). Granting a writ of certiorari “before judgment” thus
allows the Court to take up a case before it has been decided by the Court of Appeals —
and has, at least traditionally, been reserved for cases presenting extremely exigent
circumstances and timing. See Vladeck, supra note 6, at 128–30.
18. Gish v. Newsom, No. 20A120, 2021 WL 422669 (U.S. Feb. 8, 2021) (mem.).
19. United States v. Higgs, 141 S. Ct. 645 (2021) (mem.).
20. See, e.g., Lunding v. N.Y. Tax Appeals Tribunal, 522 U.S. 287, 307 (1998)
(“Although we have noted that ‘[o]ur summary dismissals are ... to be taken as rulings
on the merits in the sense that they rejected the specific challenges presented ... and
left undisturbed the judgment appealed from,’ we have also explained that they do not
‘have the same precedential value ... as does an opinion of this Court after briefing and
oral argument on the merits.’” (quoting Washington v. Confederated Bands & Tribes of
Yakima Indian Nation, 439 U.S. 463, 477 n.20 (1979)) (alterations in original)).
21. Compare Casa de Maryland, Inc. v. Trump, 971 F.3d 220, 229–30 (4th Cir. 2020),
with id. at 281 n.16 (King, J., dissenting). The Fourth Circuit has agreed to rehear Casa
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paper, together with one of his former clerks, attempting to taxonomize
the different kinds of shadow docket rulings and what their value as
precedent should — and should not — be. 22
Simply put, it is no longer possible for any reasonable observer to
dispute that there has been a dramatic uptick in significant, highprofile, shadow docket rulings over the past four years; that these
rulings have been unusually divisive; that they are leading to novel
forms of procedural relief from the Court; and that their effects are
causing significant uncertainty both in lower courts and among those
government officers, lawyers, and court-watchers left to parse what,
exactly, these rulings portend.
b. EXPLAINING THE RISE OF THE SHADOW DOCKET
There is no single explanation for the source of this uptick.
Rather, my own view is that the surge in high-profile shadow docket
rulings can best be traced to a confluence of four factors: (1) subtle
procedural changes that have made it easier for the Court to act
collectively even when the Justices are physically dispersed; (2) a subtle
but significant shift in how a majority of the Justices apply the
traditional four-part standard for emergency relief pending appeal; (3)
the effects of the changing composition of the Court on both the
substance and procedure of these disputes; and (4) repetition — where
what used to be extraordinary has increasingly become routine.
Before briefly outlining these shifts, let me first debunk one of the
most common claims about the rise of the shadow docket in recent years
— that it has largely been in response to the rise of so-called
“nationwide” injunctions. Practically and empirically, that’s just not
true. First, that only describes cases in which the federal government is
the party invoking the shadow docket — which, as the myriad election
and COVID cases of the past six months drive home, is only one modest
slice of the shadow docket. Without considering any of those cases,
we’ve still seen a dramatic uptick.
de Maryland en banc. See Casa de Maryland, Inc. v. Trump, 981 F.3d 311 (4th Cir.
2020).
22. See Trevor McFadden & Vetan Kapoor, Symposium: The Precedential Impact of
Shadow Docket Stays, SCOTUSBLOG, Oct. 28, 2020, https://www.scotusblog.com/2020/
10/symposium-the-precedential-effects-of-shadow-docket-stays/.
8
Second, even within the DOJ slice, less than half of the Trump
administration’s applications for emergency relief involved nationwide
injunctions. Rather, the theory on which the Trump administration
routinely (and usually successfully) litigated most of its applications
was that any injunction of a government policy created the kind of
irreparable harm that justified emergency relief. That’s why, after
staying a “nationwide” injunction against the “public charge” rule, 23 the
Court separately (and later) voted to stay an Illinois-only injunction
against the same rule; 24 the geographic scope of the injunction just
wasn’t the central consideration.
Instead, my own view is that the uptick reflects a more nuanced
confluence of developments. For instance, it used to be standard
practice for the Justices to resolve most contentious shadow docket
disputes by themselves — “in chambers,” acting as the Circuit Justice
for the Court of Appeals from which the dispute arose. Into the 1970s,
Justices would often even hear oral argument in such contexts, and
routinely published opinions as Circuit Justices setting forth their
rationale.
But two shifts starting in the 1980s moved away from this
practice. First, the Court stopped formally adjourning for its summer
recess — so that the Court was technically always “in session,” even
when the Justices were scattered across the globe.25 This made it easier
for the full Court to act on especially contentious cases — and took
significant authority away from the individual Circuit Justices. Second,
and related, although individual Justices often heard argument in
chambers in shadow docket disputes (especially on matters they
perceived to be of public importance 26), the full Court, as a matter of
practice (but no formal rule) did not. 27 Thus, the Court slowly
23. See Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020) (mem.).
24. See Wolf v. Cook County, Ill., 140 S. Ct. 681 (2020) (mem.).
25. See STEPHEN M. SHAPIRO ET AL., SUPREME COURT PRACTICE § 1.2(F) (11th ed. 2019).
26. See, e.g., Cousins v. Wigoda, 409 U.S. 1201, 1201 (Rehnquist, Circuit Justice 1972)
(“Because applicants’ application raised what seemed to me to be significant legal
issues of importance not only to them but to the public as a whole, I heard oral
argument of counsel on the application.”).
27. SHAPIRO ET AL., supra note 25, § 17.2.
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normalized the practice of issuing orders, even in contentious cases, by
the full Court, without meeting in person, and without any opportunity
for oral argument.
As the Court’s procedures shifted subtly, its composition shifted
dramatically. It’s not just that the two most recent appointments have
moved the Court rightward; it’s that they also appear to have provided
a fifth (and sixth) vote for a particular (and idiosyncratic) view of when
the Court should issue emergency relief. As I’ve explained in detail
elsewhere, there now appears to be a majority of Justices who believe
that, when any government action is enjoined by a lower court, the
government is irreparably harmed, and the equities weigh in favor of
emergency relief no matter the consequences to those who might be
injured by allowing the policy to remain in effect. 28 Not only did Justice
Kennedy never expressly endorse this view (which may help to explain
why the uptick has accelerated since his departure), but the underlying
justification for this approach does not actually hold up to meaningful
scrutiny; it just gets repeated as if its logic is beyond dispute. 29
The upshot is that emergency relief now appears to rise and fall
entirely on the merits — with virtually no regard for whether the other
factors that are usually required are in fact satisfied. Once again, South
Bay II stands out. Although there were four statements from the six
Justices in the majority, 30 none of them purported to apply the fourfactor test the Court traditionally follows when considering whether to
grant an injunction. Instead, all of the discussion, and all of the
Justices’ analysis, was focused on the merits of the First Amendment
dispute. That’s increasingly the norm in these contexts — which may
28. Vladeck, supra note 6, at 131–32.
29. This view appears to originate with then-Justice Rehnquist, who traced the idea to
the “presumption of constitutionality” that accompanies (most) government action. See
New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (Rehnquist,
Circuit Justice 1977); see also Maryland v. King, 567 U.S. 1301, 1303 (Roberts, Circuit
Justice 2012) (endorsing Rehnquist’s formulation). But the presumption of
constitutionality (1) is principally about statutes, not executive action; (2) is supposed to
yield when constitutional rights are implicated; and (3) is, in any event, not a
justification for declining to take into account the harm caused by allowing the policy to
remain in effect pending appeal. See Vladeck, supra note 6, at 132 n.60.
30. See South Bay II, 2021 WL 406258, at *1 (notation of Alito, J.); id. (Roberts, C.J.,
concurring); id. (Barrett, J., concurring); id. (statement of Gorsuch, J.).
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also help to explain why it’s happening so much more often. The more
that the Justices issue emergency relief on the shadow docket,
especially in cases in which it might not previously have been available,
the more the standard for such relief is necessarily diluted — making it
easier for the next applicant to make out a case for such relief, and so
on.
As the merits have become the all-but exclusive consideration in
shadow docket cases, it is hardly surprising that positions likely to
resonate with the Court’s conservative majority are faring better. But
the shift in the Court’s composition has also had procedural
consequences, not just with respect to emergency relief such as stays or
injunctions, but also with respect to summary reversals of lower courts
— for which there is at least a norm (if not a rule) that six votes, not
five, are required (on the theory that any four Justices could grant
plenary review, and so it takes six to prevent that from happening).
Thus, the Court’s novel January 15 ruling in Higgs — a summary
reversal on a petition for a writ of certiorari before judgment — seems
possible only because there are no longer four Justices who would
dissent from such a procedural move.
Simply put, if a majority of the Justices are now of the view that
the merits are the predominant consideration in considering emergency
applications, and if six Justices are willing to summarily dispose of the
merits even in novel procedural contexts, then that not only explains
why we’ve seen such a dramatic uptick on the shadow docket in the last
few years, but it also suggests that this shift is here to stay even if the
Biden administration is less aggressive in pursuing (or the Justices are
less solicitous in providing) such relief going forward. Instead, the focus
will likely shift to cases in which states are parties, or cases in which
those challenging federal policies are asking the Justices to intervene to
freeze a lower-court ruling in favor of the federal government — as with
the Clean Power Plan late in the Obama administration. 31
Finally, it’s worth noting that, whatever the cause of this uptick, it
has almost nothing to do with Congress — which hasn’t touched the
Court’s jurisdiction or procedures in any meaningful way since 1988.
Even the change in the Court’s Term — from one that formally ended
31. See West Virginia v. EPA, 136 S. Ct. 1000 (2016) (mem.).
11
with the summer recess to a “continuous” Term — was accomplished via
an amendment of Rule 3 of the Court’s rules. Everything else has come,
by all appearances, through unexplained shifts in how the Court applies
its own standards for emergency relief under statutes that Congress has
not disturbed.
Although one scholar has argued that the uptick in the Court’s
grants of certiorari before judgment can be tied to an amendment
Congress enacted in 1988, 32 that category of cases is, frankly, the
smallest and least troubling subset of the cases discussed herein. After
all, at least until the January 2021 ruling in Higgs, certiorari “before
judgment” was primarily a mechanism for getting a merits case to the
Court faster, not for summarily altering the status quo. Even if
Professor Morley is correct about the 1988 reform (a debatable
proposition given the lack of any increase in grants of certiorari before
judgment prior to 2017), that doesn’t explain — or justify — any of the
far more significant shifts in other shadow docket rulings.
III. WHY THE RISE OF THE SHADOW DOCKET IS A PROBLEM
The uptick identified above is not simply an assessment of volume.
Rather, the Supreme Court’s significant shadow docket rulings in
recent years have had dramatic real-world impacts — from allowing
controversial immigration policies affecting millions to go into effect 33 to
clearing the way for the first federal executions in 17 years; 34 from
blocking state-wide COVID restrictions 35 and rulings by lower federal
courts extending access to the polls in the 2020 election 36 to staying out
of cases after the election seeking to overturn the result. 37 Reasonable
minds will surely disagree about the merits of each (and all) of these
32. Michael Morley, Congressional Intent and the Shadow Docket, HARV. L. REV.
BLOG, Jan. 24, 2020, https://blog.harvardlawreview.org/congressional-intent-and-theshadow-docket/.
33. See, e.g., Trump v. Int’l Refugee Assistance Proj., 137 S. Ct. 2080 (2017) (mem.).
34. See Barr v. Lee, 140 S. Ct. 2590 (2020) (per curiam).
35. See, e.g., S. Bay United Pentecostal Church v. Newsom (“South Bay II”), No.
20A136, 2021 WL 406258 (U.S. Feb. 5, 2021) (mem.).
36. See Merrill v. People First of Ala., 141 S. Ct. 25 (2020) (mem.).
37. See Texas v. Pennsylvania, No. 155, Orig., 2020 WL 7296814 (U.S. Dec. 11, 2020)
(mem.); Kelly v. Pennsylvania, No. 20A98, 2020 WL 7221757 (U.S. Dec. 8, 2020) (mem.).
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rulings. But it seems important to me to highlight some of the many
ways in which handing down significant rulings via the shadow docket
is problematic even to those who think the Court is generally getting the
merits of most (or even all) of these disputes “right.”
1. The absence of reasoning. Most significantly, these rulings are
generally coming down without any explanation from a majority of the
Justices as to their reasoning, leaving not only the parties and lower
courts but other actors who might be affected by the decision (e.g., state
executive officials) to speculate as to why the Court ruled the way it did.
Indeed, if the Justices truly are focusing on the merits to the exclusion
of all other considerations in applications for emergency relief, it might
behoove them to say so — so that lower courts stop applying what may
increasingly be the wrong standard. Either way, the lack of reasoning
makes it impossible to scrutinize the merits of the Court’s action in far
too many of these cases.
2. The anonymity of the vote. The uncertainty over which
Justices voted which way, especially on contentious issues, also
perpetuates uncertainty among parties and lower courts — who have
been instructed by the Supreme Court to generally give weight to the
“narrowest” view that commands the support of a majority of the
Justices. 38 When, as in the Dunn v. Smith ruling last Thursday, we
don’t even know who the fifth (and perhaps sixth) votes were in support
of a shadow docket ruling, that only further complicates efforts to figure
out exactly what the Court has commanded.
3. The unpredictable timing of decisions. Another issue that has
arisen with the rise of the shadow docket has been the proliferation of
what Bloomberg News’s Supreme Court reporter Greg Stohr has called
the “night Court” — with decisions often coming down late in the
evening (or very early in the morning), especially on Friday nights. 39 In
July 2020, for example, the Court handed down a pair of major rulings
clearing the way for the first federal executions in 17 years in a pair of
5-4 decisions that were handed down the first night at 2:10 a.m. EST,
38. See Ramos v. Louisiana, 140 S. Ct. 1390, 1403 (2020) (citing Marks v. United
States, 430 U.S. 188, 193 (1977)).
39. Greg Stohr (@gregstohr), TWITTER (Feb. 6, 2021, 1:02 PM), https://twitter.com/
GregStohr/status/1358113817696288769?s=20.
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and two nights later at 2:46 a.m. EST. Executions raise unique timing
concerns with respect to last-minute stay applications (or applications
to lift stays), but even cases with no comparable urgency have led to
late-night rulings — such as the decision in South Bay II, which came
at 10:44 p.m. EST on a Friday night six days after briefing had been
completed. Likewise, the Court’s significant ruling blocking New York’s
COVID-based restrictions on certain religious services in Roman
Catholic Diocese of Brooklyn v. Cuomo was handed down at 11:56 p.m.
EST on Wednesday, November 25 — the night before Thanksgiving.
There’s a reason why the Court follows a longstanding protocol for when
it hands down rulings in argued cases. Among other things, it increases
public access to and awareness of the decisions. Indeed, the hand-down
announcements are even recorded and eventually published. Here, in
contrast, the rulings are handed down in a manner that makes them
that much more inaccessible.
4. The lack of merits briefing, amicus participation, and/or
oral argument. Deciding significant questions through the shadow
docket also deprives any number of affected parties of the opportunity
to participate, including through the filing of friend-of-the-Court briefs.
Although the Supreme Court’s rules do not preclude the filing of such
amicus briefs in conjunction with shadow docket applications, the
timing makes them all-but impossible in most cases. And effectively
handing down merits decisions on the shadow docket also deprives the
parties of a chance to fully brief the merits (as opposed to briefing
whether emergency relief is warranted) and oral argument —
notwithstanding the settled view that both of those are key features of
the Court’s plenary consideration.
5. The problems with predictions. The above concerns all go to
the transparency of the Court’s decisions and the opportunities of
interested parties to help shape them. But even on their merits, shadow
docket rulings suffer from multiple flaws, including the difficulties of
making predictive judgments about the merits of a dispute so early in
the progress of litigation. Consider, in this respect, the Court’s shadow
docket ruling issuing a partial stay of two district court injunctions
against the second iteration of President Trump’s travel ban. 40
40. Trump v. Int’l Refugee Assistance Proj., 137 S. Ct. 2080 (2017) (mem.).
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Presumably (although we’ll never know), that decision reflected a
judgment by a majority of the Justices that they would uphold that
policy if and when it reached them for plenary review. But right before
the Court was set to hear argument, the Trump administration
withdrew the second iteration, and replaced it with the more legally
nuanced third version — mooting the appeal and leading the Court to
dump the cases from its calendar without reaching those merits. (They
would eventually uphold the third iteration.) As these cases show, the
Justices are sometimes making predictions about what they’re going to
do in cases on which they never actually have a chance to rule. Indeed,
the Court was supposed to hear arguments in the coming weeks on
challenges to President Trump’s border wall and his “remain in Mexico”
asylum policy — which no lower court ever sustained. But because the
Biden administration has changed those policies, the Court has
removed those cases from its argument calendar, and will likely never
reach the merits of those disputes notwithstanding its earlier rulings
that allowed the policies to go into effect pending appeals of adverse
lower-court rulings.
6. Prematurely (and unnecessarily) resolving constitutional
questions. The increasing prominence of the shadow docket also means
that the Justices are more frequently deciding significant questions of
constitutional law at an incredibly early stage of litigation — including
in contexts in which such constitutional analyses turn out to be
premature and/or entirely unnecessary. Consider, in this respect, the
decision in Roman Catholic Diocese of Brooklyn, in which a 5-4 majority
enjoined New York COVID restrictions that were no longer in effect on
the ground that they likely violated the First Amendment. Although the
dispute certainly appeared to be moot, the majority (in a rare — but
unsigned — opinion for the Court) justified such an intervention
because “if” the state were to re-apply the challenged restrictions on
religious worship, such a hypothetical move would “almost certainly bar
individuals in the affected area from attending services before judicial
relief can be obtained.” 41 In other words, the Court used a shadow
docket ruling to resolve major First Amendment questions about a
policy that wasn’t even in effect — and did so before the litigation had a
41. Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020) (per
curiam) (emphases added).
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chance to make its way through the courts on the merits. The Court is
fond of saying that it is “a court of final review and not first view,” 42
trumpeting the virtues of percolation, of developments of factual
records, and of the benefit of having several rounds of lower-court
briefing (and rulings) in the record before deciding weighty
constitutional cases. Except on the shadow docket.
7. Distorting the Supreme Court’s workload. In addition to
these procedural and substantive concerns, the shadow docket also
appears to be increasingly competing with merits cases for the Justices’
attention. During its October 2019 Term, the Court handed down
signed opinions in only 53 merits cases — the fewest since the Civil
War. Some of that can be blamed on COVID, which led the Justices to
postpone arguments in 10 cases from the March 2020 and April 2020
sessions to October 2020. But so far this Term, the Court is on pace to
hand down signed opinions in only 56 merits cases — which would be
the second-lowest total since the Civil War. As the shadow docket has
grown, the merits docket has shrunk (graphic credit: Adam Feldman):
42. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012) (quoting Adarand
Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (per curiam)). During the October
2018 Term alone, this sentiment was referenced in 11 different opinions. See Vladeck,
supra note 6, at 126–27 n.20.
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8. Undermining the Court’s legitimacy. All of the above concerns
tie together in respect to the final, and most significant objection: That
the rise of the shadow docket, especially at the expense of the merits
docket, has negative effects on public perception of the Court — and of
the perceived legitimacy of the Justices’ work. If the Court is handing
down a higher number of decisions affecting Americans in unsigned,
unreasoned orders, both in absolute terms and relative to merits
rulings, that necessarily exacerbates charges — fair or not — that the
Justices are increasingly beholden to the politics of the moment rather
than broader jurisprudential principles. As Justice Sotomayor has
warned, all of these developments in the aggregate “erode[] the fair and
balanced decisionmaking process that this Court must strive to
protect.” 43
IV.
POTENTIAL AVENUES FOR REFORM
Of course, just as the rise of the shadow docket has largely been
the result of judge-made shifts in judge-made norms and procedures,
the first place where reforms to address these concerns should be
pursued is at the Supreme Court itself. Hopefully, the mere fact that
the Subcommittee is holding this hearing will bring additional light to
the concerns I and others have raised — and perhaps the Justices will
take those into account as they approach shadow docket rulings going
forward.
I should also note that I’m one of those who is generally opposed to
undue congressional interference in the workings of the federal courts
in general, and the Supreme Court in particular. To that end, I don’t
think that the concerns that I and others have identified can or should
be addressed through reforms designed to prohibit the Court from doing
what it’s doing — or, for example, to mandate that the Justices publicly
disclose their votes on all (or even some) orders, etc. Even if such
legislation doesn’t raise constitutional concerns (and some of it might), I
fear that it could open up a can of worms that could lead to intrusions
on norms of judicial independence going forward.
That’s not to say, however, that Congress is entirely powerless to
address the rise of the shadow docket. Rather, I think there’s a
43. Wolf v. Cook County, Ill., 140 S. Ct. 681, 684 (2020) (Sotomayor, J., dissenting).
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meaningful conversation to be had about shadow-docket inspired
legislative reforms, which I see as falling into two basic camps:
First, Congress can and should consider mechanisms for taking
pressure off of the shadow docket. If the rise of the shadow docket is in
part a reflection of the Justices being unwilling to wait for plenary
merits consideration of some of these issues, Congress can, of course,
address that. Among other things, such reforms might include:

Allowing the federal government to transfer all civil suits
seeking “nationwide” injunctive relief to the D.C. district court
— to avoid the concern of overlapping (or diverging)
“nationwide” injunctions.

In cases in which any (state or federal) government action is
enjoined by a lower federal court, speed up the appellate
timelines so that appeals of lower-court rulings receive plenary
appellate review much faster — by shortening the time for
filing an appeal; by mandating aggressive briefing schedules;
and by strongly encouraging courts to give such cases all due
priority.

In capital cases (where Justices from across the spectrum have
bemoaned the difficulty of confronting novel legal questions on
the literal eve of a scheduled execution), give the Court
mandatory appellate jurisdiction at least over direct appeals —
and perhaps also make it easier for death-row prisoners to
bring timely method-of-execution challenges before an
execution date has been set.
Second, Congress might consider codifying certain features of the
shadow docket that were only norms historically. These could include:

Codifying the traditional four-factor test that the Court applies
in considering applications for emergency relief. 44
44. Congress has, in at least some prior cases, prescribed standards of review even for
injunctions against unconstitutional governmental action. See, e.g., Miller v. French,
530 U.S. 327 (2000) (upholding provision of the Prison Litigation Reform Act that
prescribes a standard of review for injunctions against unconstitutional prison
conditions).
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
Encouraging the Justices to provide at least a brief explanation
of any order with respect to a stay or injunction that alters the
status quo vis-à-vis the lower courts.

Encouraging the Court to hold (and funding) oral arguments on
applications where there is at least a reasonable likelihood that
the Justices will alter the status quo.
V.
CONCLUSION
But no matter which of these reforms the Subcommitte pursues, if
any, perhaps the most important thing we can do is to help bring this
increasingly important source of significant Supreme Court rulings out
of the shadows. In that respect, today’s hearing strikes me as a salutary
first step.
Thank you again for the invitation to testify today. I look forward
to your questions.
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