Shining Light on the Shadow Docket
Strict Scrutiny
Deep Dive
What is the shadow docket and how does it differ from the Supreme Court's merits docket?
The shadow docket refers to all of the Supreme Court's decisions other than the 55 to 60 signed, argued cases per term. These decisions include grants or denials of certiorari, emergency relief, and scheduling orders, often issued without explanation and unsigned. Unlike the merits docket, which is highly visible and extensively covered, the shadow docket operates largely out of the public eye but can have significant real-world impacts.
Why is understanding the shadow docket important for understanding the Supreme Court's role and power?
Understanding the shadow docket is crucial because it influences the merits docket and shapes the court's agenda. The justices have almost plenary control over which cases they hear and which questions they decide, and the shadow docket allows them to make significant decisions without the transparency and accountability of the merits docket. This has contributed to the court's growing power and its outsized role in contemporary public policy debates.
How did William Howard Taft reshape the Supreme Court's jurisdiction and power?
Taft, as both President and later Chief Justice, lobbied Congress to give the Supreme Court more control over its docket through the Judiciary Act of 1925. He advocated for discretionary certiorari jurisdiction, which allows the court to pick and choose cases. This shift transformed the court from a court of last resort in a vertical hierarchy to a constitutional court with greater autonomy and power.
What is the historical significance of the Cambodia bombing dispute in 1973 for the shadow docket?
In 1973, Justice Douglas granted an injunction to stop Nixon's bombing of Cambodia, but it was quickly overturned by the full court, led by Justice Marshall. This incident foreshadowed the problems with the court's shadow docket, such as the lack of a consensus process, the absence of meaningful opportunities for parties to be heard, and the tendency for the court to make significant decisions without explanation.
How did the evolution of the death penalty cases influence the shadow docket?
The rise of the death penalty led to a surge in emergency applications, which the court began handling en banc without explanation. This normalized the practice of issuing unsigned, unexplained orders with significant effects, such as staying or unstaying executions. These practices later spread to other areas of law with broader national implications, like the Clean Power Plan.
What is the 'courtesy fifth vote' and how has it evolved over time?
The 'courtesy fifth vote' was a practice initiated by Justice Powell in the 1980s, where he would provide a fifth vote for a stay of execution if four justices voted to grant certiorari. This was meant to avoid the unseemly appearance of executing a prisoner whose case was on the court's docket. However, this practice has waned, especially since the ideological shift on the court, and now the court often denies stays without even a fourth vote for certiorari.
How did the court's treatment of religious claims differ in Dunn v. Ray and a similar case involving a Buddhist prisoner?
In Dunn v. Ray, the court denied a Muslim prisoner's request for a religiously appropriate execution, but later granted a similar request for a Buddhist prisoner. This inconsistency raised concerns about the court's seemingly arbitrary and politically motivated use of the shadow docket, leading to criticism from various quarters, including some conservatives.
What role did the shadow docket play in the Trump administration's federal executions?
In the last months of the Trump administration, the Supreme Court used the shadow docket to enable the federal government to execute 13 prisoners, overturning lower court stays. The court justified these actions with a single opinion, often without fully resolving the prisoners' claims, highlighting the court's power to make significant decisions without creating precedents or providing detailed explanations.
How does the shadow docket mask the ideological shifts on the Supreme Court?
The shadow docket can mask ideological shifts because court watchers and statistics often focus on the merits docket. However, the shadow docket shows a more starkly ideological portrait, with many 5-4 decisions lacking explanations. For instance, in the October 2019 term, while the merits docket had only seven 5-4 decisions, the shadow docket had 11, all of which were ideologically aligned.
How does the current court use the shadow docket to help Republicans and undermine democracy?
The court uses the shadow docket to freeze lower court injunctions that make voting easier, often citing the Purcell principle to avoid voter confusion. Conversely, it fails to vacate injunctions that disenfranchise voters, such as in Florida where a state constitutional amendment re-enfranchising felons was blocked. This selective application of the shadow docket disproportionately favors Republican interests.
What are some potential fixes for the shadow docket issue?
Possible fixes include increasing public awareness and understanding of the shadow docket, impelling justices to reform their behavior, and introducing procedural reforms such as requiring more explanations for decisions. Ultimately, the issue stems from congressional abdication, and restoring a healthy interbranch dialogue about the court's proper role could help address the problem.
- The shadow docket includes all Supreme Court actions besides merits decisions.
- It significantly impacts the court's overall power and influence.
- The author argues that the shadow docket's evolution is key to understanding the court's growing power.
Shownotes Transcript