The "shadow docket" refers to the set of expedited cases that the Supreme Court agrees to review outside of its standard "merits" docket. Shadow docket cases don't receive the full briefings and standard arguments of cases on the official docket. Critically, shadow docket decisions are not published in the form of a lengthy opinion of the Court justifying the decision. They produce succinct orders, generally issued without legal justification. And while these cases typically receive less attention than cases on the merits docket, they can have significant implications for the law and for individual litigants.
Journalist Dahlia Lithwick explains the origins of the term "shadow docket" and how it has come to refer to the growing number of emergency orders by the Court. Emergency orders of the Court traditionally came in response to important and time-sensitive issues (e.g. an imminent execution) that could not wait until the next term of the Court or which are so urgent that the measured review process would not be feasible. According to Lithwick and scholars such as Prof. Stephen Vladick (Texas Law), the Supreme Court's shadow docket is today more expansive than ever and is now raising questions about the precedent these cases set and the role of the high court more broadly.
Dahlia Lithwick is a contributing editor at Newsweek and senior editor at Slate covering law and the courts. She is the host of the Slate podcast Amicus and the author of the book Lady Justice, Women, the Law, and the Battle to Save America (Penguin Press, 2022).
Law Professors Referenced
The Shadow Docket Explained – an interview with legal journalist, Dahlia Lithwick.
Joel Cohen (“host”): What is this “shadow docket” and why has it become so relevant of late?
The Origin of the "Shadow Docket"
Dahlia Lithwick: So, the term was coined by Professor Will Baude who is not, by the way, a flaming liberal. The shadow docket sounds like a nefarious term for what Justice Alito would say is just the Court's emergency docket and the court has always had an emergency docket because there's executions, right? There's all sorts of last minute things that have to be decided at the 11th hour. The term the shadow docket is in reference to the growing number of cases that are not emergencies that are hustled onto that docket as a way to avoid little things like briefing and oral arguments and meaningful, you know, written opinions and a lot of really big big cases in the last few years have been decided on the shadow docket: (a) some of the religious organizations that were challenging COVID limits on how many people could attend services, decided on the shadow docket; (b) the eviction moratorium, decided on the shadow docket; (c) remained in Mexico decided on the shadow docket; (d) SB-8 the Texas “Vigilante” Bill, decided on the shadow docket.
How does a case get onto the shadow docket?
Host: How does something get on the shadow docket?
Dahlia Lithwick: It’s just the posture. It's just brought as a sort of emergency, “This needs to be decided right now.” I should note that the Trump Administration was very very adept at constructing, “this is an emergency, we have to bypass all the intermediate steps and get it before the Court as an emergency.” And in fact, in fairness, some of these things really are emergencies. But when they are not fully litigated, when there's no record, when there's nothing for judges who are supposed to apply this as doctrine… I mean one of the things that was really alarming about the COVID cases was that the instruction on the next COVID case would be like, well why don't you just reference our last shadow docket order. Oh, except it's three lines. And so judges had no idea how to even apply the reasoning, which is the one thing the Supreme Court's supposed to be doing. And I think that there's a way in which when an order pops up at midnight and it's sometimes even unsigned, you don't actually even know what the vote was. It's not even clear, unless it's listed who's dissenting.
Host: So sometimes that's not published. The vote is not published?
How are shadow docket cases published and why are they controversial?
Dahlia Lithwick: Yeah, no I mean it can be. It can just be, we did this. And I guess I would say this: there is a fight going on and this time last year the fight was in high tilt and people like Professor Vladeck were saying this: show your work. It’s the one thing you're supposed to be doing, Supreme Court. And if what you're doing is just showing us the last line of an order on something that affects everyone, like the “remain in Mexico,” or the eviction moratorium or COVID-19 orders, tell us how you got to where you got and let both sides be heard. And Justice Alito gave a speech where he just smacked back, not just at academics who were criticizing the Court but at journalists who are criticizing the Court. I want to be fair and say the Court needs to be able to decide issues on an emergency basis. I think what Professor Vladeck would say, and you should just interview him because he's much better on this than I am, but what he would say is it's the number of cases that are appearing there. It's the import of the cases. These are huge existential issues, and we are now really in the midst of a huge national conversation about public confidence in the Court. The Court has the lowest approval ratings it's ever had. One of the factors is, when the Court is like beavering away at midnight and handing down three sentence orders that nobody understands how it's applied in the future or even who wrote it or who signed it, that is the opposite of transparency. And it's part of why, I think, the public feels that the court is unaccountable.