shadow docket

shadow docket, the body of decisions, usually in the form of orders issued by a single justice of the United States Supreme Court (acting in his or her capacity as a circuit justice for a particular United States Court of Appeals) or by the Supreme Court as a whole, that are independent of the Court’s merits docket, which consists of cases decided in opinions written by members of the Court after hearing oral arguments and considering legal briefs by the relevant parties and by interested third parties, or amici curiae (Latin: “friends of the court”). The informal and commonly used term designating the Court’s nonmerits docket was coined in 2015 by the American legal scholar William Baude to describe “a range of orders and summary decisions that defy [the Court’s] normal procedural regularity” and “lack the transparency that we have come to appreciate in its merits cases.”

Most orders on the shadow docket consist of the granting or denying of a writ of certiorari (a petition for review of a lower-court ruling) or the settlement of routine procedural matters, such as scheduling oral arguments and setting deadlines for the submission of briefs. Throughout the Court’s modern history, the shadow docket has also included a relatively small number of orders issued in response to emergency applications from parties seeking immediate intervention by the Court in cases heard or yet to be heard in lower courts. In such orders, most of which are issued to preserve the status quo while a decision is pending in lower courts, the Court may stay a lower-court ruling pending appeal to a higher (appeals) court, lift a stay of a lower-court ruling by a higher court, or grant or deny a request for a preliminary injunction (i.e., an order temporarily prohibiting or requiring the continued performance of a certain action by one of the parties to the case pending a final decision by a lower court). In these substantive shadow-docket cases, the Court generally does not hear oral arguments and receives only limited briefs from the parties directly involved. The ensuing orders are generally unsigned and are not accompanied by any explanation of the legal reasoning involved, much less a full opinion justifying the decision. A few shadow-docket orders have been accompanied by one or more brief statements by justices who agreed or disagreed with them, but in all other instances there is no official indication of how many or which justices supported or opposed them.

Substantive shadow-docket cases have long included emergency requests for a stay of execution by prisoners on death row, often because prisoners’ appeals of death sentences in lower courts gain new urgency once an execution is officially scheduled or because some challenges to death sentences cannot be lodged until an execution date is set. Other substantive shadow-docket cases have addressed highly controversial political issues, such as changes to state electoral rules or procedures, restrictions on the availability of legal abortions, and immigration reform. Another contrast with cases on the merits docket is that shadow-docket orders tend to be issued unexpectedly and in some instances at odd times, such as late in the evening or very early in the morning, even when the case in question does not demand an urgent decision (as it might in a last-minute appeal of a death sentence).

During the administration of Pres. Donald Trump (2017–21), the frequency with which the Supreme Court issued shadow-docket orders in cases involving controversial political issues increased dramatically. The large number of such orders was in part due to the fact that the Department of Justice (DOJ) during the Trump administration requested emergency relief from the Court far more often than preceding administrations had done (according to one scholar, the DOJ filed emergency applications 41 times during Trump’s presidency but only a total of 8 times during the preceding presidencies of Barack Obama [2009–17] and George W. Bush [2001–09]). Notably, more than two-thirds of the Trump DOJ’s emergency requests—28 out of 41—were granted, in whole or in part. Another factor contributing to the rise in shadow-docket orders during the Trump administration, according to some observers, was an increase in the issuance of countrywide injunctions by lower courts against actions or policies by the federal government, a type of ruling that certain justices on the Court tended to view as excessively broad. Other scholars contended that shadow-docket rulings had become more common because the Court itself had effectively lowered the standards it used to determine whether emergency relief was justified, now viewing any injunction of an executive branch action as an example of the sort of prima facie “irreparable harm” that traditionally counts in favour of granting injunctive relief. A related contention was that some of the Court’s shadow-docket orders ignored the traditional criteria for determining whether a preliminary injunction is justified and instead were based solely on what the Court determined to be the merits of the case in question.

Many of the shadow-docket orders issued by the Supreme Court during and after the Trump administration have been extremely controversial. The Court’s intervention was sometimes criticized because it effectively resolved some cases, or rendered them moot, by preventing lower courts from dealing with emergency matters in a manner appropriate to the limited time available. In 2020, for example, the Court issued controversial shadow-docket orders regarding state election rules governing the 2020 election, including a stay of an injunction issued by a federal district court in Alabama; the stay effectively prevented Alabama counties from implementing curbside voting for disabled voters during the COVID-19 pandemic. In the same year, the Court stayed an injunction issued by a federal district court that had prevented the United States Census Bureau from radically reducing an extended time frame for census data collection that the bureau had adopted earlier in the year to address data-collection difficulties created by the COVID-19 pandemic. Although the Supreme Court’s stay order was technically temporary, pending disposition of the case by the United States Court of Appeals for the Ninth Circuit (which had declined to stay the district court’s injunction), it enabled the Census Bureau to permanently halt its data collection only two days later. Other controversial shadow-docket orders concerned state laws limiting legal access to abortions. For example, in September 2021, in a one-paragraph ruling issued in response to an emergency application by abortion clinics in Texas, the Court refused to enjoin enforcement of a state law, S.B. 8, that banned abortions after six weeks of pregnancy, despite the law’s evidently unconstitutional status under Roe v. Wade (1973). (The Court later overturned Roe v. Wade in a regular merits-docket case, Dobbs v. Jackson Women’s Health Organization [2022].)

The increased number and variety of substantive shadow-docket rulings by the Supreme Court has prompted concern from legislators, judges, legal scholars, and journalists, as well as from some members of the Court itself. These and other critics have argued that the extended shadow docket has created a number of significant problems, including: (1) confusion among lower courts and legislators as to the legal reasoning underlying the Court’s positions on important constitutional questions; (2) reduced public access to and awareness of important Court decisions, owing to the unusual timing of several substantive shadow-docket orders; and (3) undermining of the Court’s legitimacy in the eyes of the public, in view of the fact that substantive shadow-docket orders, because they are usually issued anonymously and without any supporting argument, can be perceived as being politically motivated, especially if they effectively advance or endorse one side of a countrywide political controversy.