The Supreme Court's enigmatic "shadow docket," explained
How the Supreme Court hides major conservative victories in plain sight.
By Ian Millhiser Aug 11, 2020, 8:30am EDT
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Chief Justice John Roberts speaks before presenting US Supreme Court Justice Ruth Bader Ginsburg the American Law Institute's Henry J. Friendly Medal in Washington, DC, on May 14, 2018.
Jim Watson/AFP via Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
Last week, the Supreme Court handed down a 5-4 decision blocking a lower court's order requiring a California jail to take several steps — such as socially distancing inmates and providing them with "hand sanitizer containing at least 60% alcohol" — to prevent the spread of Covid-19 within the jail.
I have no idea why the Supreme Court would do such a thing, and neither does anyone else who isn't a justice or one of their closest advisers.
The reason for our ignorance is that the five justices in the majority — all five of the Court's Republicans — didn't bother to explain their decision. The entirety of the Court's order in Barnes v. Ahlman is a single paragraph of boilerplate language, informing the reader that "the district court's May 26, 2020 order granting a preliminary injunction is stayed pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition" of a petition asking the justices to fully review this case.
Hundreds of incarcerated people could become infected with a potentially deadly disease. And the Supreme Court won't even tell us why.
Welcome to the Court's "shadow docket."
The term "shadow docket" was coined by University of Chicago law professor William Baude in an influential 2015 article. It refers to "a range of orders and summary decisions that defy [the Court's] normal procedural regularity." Often these orders are handed down without any explanation from the majority, or without much advance notice from the Court. Frequently they are handed down on Friday evenings, after at least some of the Supreme Court press corps are already a couple of beers into their weekends.
Because shadow docket cases are often released without a majority opinion explaining the Court's reasoning, they have less impact on legal doctrine than most ordinary decisions. Judges are bound by the Court's majority opinions, but a lower court judge can't follow an opinion that doesn't exist.
Nevertheless, the stakes in shadow docket cases — which often arise after a party files an emergency request asking the Court to block a lower court order — can be enormous. The decision in Barnes endangers the health of thousands of inmates. Other shadow docket decisions concern billions of dollars. Or they can effectively lock thousands of immigrants out of the country.
The ideological cast of the shadow docket, moreover, is even more conservative than the Court's regular docket. Though the Court's recent term featured several high-profile — though often very narrow — victories for liberals, the Court's party-line decision to lift safeguards against spreading Covid-19 within a California jail is more typical of its shadow docket.
The Trump administration has a particularly high win rate in shadow docket cases. And it knows it. It asks the Supreme Court to block lower court orders far more than any recent administration.
The Court, meanwhile, has shifted an increasing share of its output to this often inscrutable shadow docket. In the past year, Justice Sonia Sotomayor has written several strongly worded dissents warning that her colleagues are bypassing safeguards intended to prevent the Court from handing down cursory, insufficiently thought-out decisions — and that they often do so to benefit the Trump administration.
Her most recent dissent was in Barnes, the jail case. "The District Court found that, despite knowing the severe threat posed by COVID–19 and contrary to its own apparent policies, the Jail exposed its inmates to significant risks from a highly contagious and potentially deadly disease," Sotomayor wrote. And yet the Supreme Court "intervenes, leaving to its own devices a jail that has misrepresented its actions to the District Court and failed to safeguard the health of the inmates in its care."
Perhaps there's an explanation for why the Court's Republican majority felt intervention was appropriate. But if there is one, they aren't telling us.
Because they are decided so quickly and often without explanation, moreover, shadow docket cases will tend to fly under the radar. But, with so much at stake in many of these cases, they deserve far more attention than they often receive.
The Supreme Court's normal process for hearing cases, explained
Before we jump into the shadow docket, it's helpful to understand how the Court ordinarily decides cases. The famous cases that you've most likely heard of — cases like Roe v. Wade and Brown v. Board of Education — reach the Court through a long, drawn-out process that privileges careful decision-making over speed. Because the Supreme Court has the final word on all questions of federal law, including interpretations of the Constitution, the Court's ordinary procedures call for it to act with great care to avoid making mistakes.
For starters, the justices are extraordinarily selective about which cases they hear through their ordinary docket. In a typical year, lawyers file 7,000 to 8,000 petitions for a writ of certiorari, the formal name for a petition asking the Supreme Court to give full review to a lower court's order. The Court typically grants fewer than 80 of these "cert" petitions.
Once such a petition is granted, the justices spend months pondering the case. Lawyers on either side of the dispute file lengthy briefs and voluminous collections of documents culled from the case's overall record. In the most high-profile cases, dozens of amicus briefs may be filed on either side of the case as well — leaving the justices and their law clerks with hundreds or even thousands of pages of legal arguments to ponder before reaching a decision.
And all of this typically happens after the case has already received considerable attention from lower court judges. The Supreme Court's rules warn lawyers that, unless their case presents an unusually "important question of federal law" that demands the justices' attention, the Court rarely grants cert petitions unless necessary to resolve a disagreement between two federal courts of appeals, two state supreme courts, or a federal court of appeal and a state supreme court.
Thus, by the time the justices hear a case, the legal question presented by that case has typically been pondered by many lower court judges, and judges who disagree about the proper answer to that question have written their own opinions that the justices can rely on in thinking through the case themselves.
As Peter Margulies, a law professor at Roger Williams University, told me, the "usual view" among judicial experts is that "you want that kind of percolation effect." When there are "more eyeballs" on a legal question before it reaches the justices, the Supreme Court benefits from "more viewpoints," and that tends to lead to better decisions.
There's also a very good reason the Supreme Court ordinarily moves so slowly, and typically spends so much time thinking about cases before handing down an opinion. There is no higher court that can correct the Supreme Court's errors, so if the justices botch a case, that decision could linger forever. It will bind all future judges who are confronted with similar cases, and can only be overruled by a subsequent Supreme Court decision.
Shadow docket cases receive little of the careful deliberation that goes into the ordinary docket
Which brings us to the Court's shadow docket.
Unlike cases on the Court's regular docket, shadow docket cases receive very limited briefings and are rarely, if ever, argued before the justices. Though the justices will often discuss these cases among themselves, they frequently do so on an extraordinarily compressed schedule — leaving far less time for reasoned debate. That's often true because shadow docket cases frequently arise from emergency requests asking the Court to grant swift and immediate relief, meaning that the justices will only spend days or even hours pondering how to rule on such a request.
Because many of these cases are resolved in brief orders and without a written opinion explaining the majority's reasoning, shadow docket cases often have less impact on legal doctrine than cases on the ordinary docket. Lower court judges are bound by the reasoning memorialized in the Supreme Court's majority opinions, but they can't be bound by an opinion that doesn't exist.
The Court does sometimes hand down majority opinions when it resolves cases on its shadow docket. To date, for example, the Court's only majority opinion governing the rights of voters who are afraid of contracting Covid-19 if they go to the polls is Republican National Committee v. Democratic National Committee (2020). That decision, which effectively required Wisconsin to toss out many ballots cast in its election last April, was decided just two days after the GOP requested an emergency order from the Supreme Court.
"It's hard to imagine that [the justices] have the same deliberation or time to think about the varying arguments by each party" in many shadow docket cases, according to Shoba Sivaprasad Wadhia, a professor and associate dean at Penn State Law. Yet when the Court hands down a majority opinion in a shadow docket case, lower court judges still must obey that decision.
When the justices in the majority do not explain their reasoning, a different but also troubling problem arises.
There's a common phrase within the judiciary. When a judge initially thinks a case should come down one way, but then they start writing their opinion and realize they can't come up with a legally sound argument justifying that outcome, they say that the opinion "won't write." The ordinary requirement that judges explain their decisions in reasoned opinions can be a tremendous check on judicial power. It discourages those judges from ruling in arbitrary ways.
As Margulies told me, "there are some opinions that just aren't going to work out" once a justice has taken sufficient time to reason through how to decide the case. But if the Supreme Court pushes too many of its decisions onto its shadow docket, the justices in the majority may never figure out that their first instinct regarding how to decide a case was flawed.
Cases on the Court's ordinary docket, moreover, receive a great deal of public scrutiny. Consider, for example, June Medical Services v. Russo, an abortion decision the Court handed down in June. Vox covered the Court's decision to hear this case, its oral argument in this case, and its ultimate decision to strike down a Louisiana anti-abortion law as separate and important news events — and that sort of coverage is typical of outlets that cover the Supreme Court. We also probed the history of June Medical and similar cases. We reported on the political fallout from the Court's decision. And that's just a small fraction of our coverage of this highly newsworthy case.
Shadow docket cases, by contrast, almost never receive this kind of attention. How could they when they are often decided so quickly that even many veteran Supreme Court journalists do not realize the Court is considering an important case until after a decision is handed down?
For many of these reasons, the Supreme Court has historically applied a strong presumption against second-guessing lower court judges when a case arrives on the Court's shadow docket. As Justice Sotomayor wrote in a dissenting opinion in Wolf v. Cook County, one of several recent decisions where she criticized her colleagues for being too eager to stay lower court opinions, "stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument."
A Supreme Court order blocking a lower court decision has historically been considered an "extraordinary" event, Sotomayor explained. But they've become increasingly common in the Trump years.
Since the Court's most recent term began last October, the justices have handed down at least 10 emergency orders decided by a 5-4 vote. Eight of these shadow docket cases granted full or partial relief to a party seeking to curtail a lower court order.
The Court's shadow docket decisions often have severe consequences for the most vulnerable communities
The Court's decision to, again borrowing from Sotomayor's words, lift public health restrictions on a jail that "recently reported 15 new cases of COVID– 19 in a single week" is fairly typical of its recent shadow docket decisions.
Though liberals sometimes prevail in these cases, the Court's shadow docket cases far more frequently benefit conservative litigants and conservative causes, at least when the justices divide on the proper outcome. Of the 10 cases mentioned above, eight were decided along party lines with the Republican justices in the majority. And these decisions benefit conservatives at the expense of some of the most vulnerable communities subject to the Court's jurisdiction.
Republican National Committee, for example, forced many Wisconsin voters to make a devilish choice — give up their right to vote or risk becoming infected with a potentially deadly disease. The Court's decision in Dunn v. Ray (2019) ruled that an Islamic death row inmate could not have his spiritual adviser present at his execution, even though the prison permitted Christian inmates to have a minister present to say last rites.
And then there are the Court's immigration decisions, where the Court has repeatedly blocked lower court decisions protecting immigrants in cases that arose on its shadow docket. Among other things, the Court's shadow docket cases reinstated a Trump administration policy restricting low-income immigrants' ability to enter the United States. They permitted Trump to spend billions to build a border wall. And they reinstated a policy that makes it so difficult for victims of persecution to seek asylum in the United States that, according to Lee Gelernt of the American Civil Liberties Union's Immigrants' Rights Project, that policy has the effect of "virtually ending asylum at one shot."
"When the Supreme Court acts to stay an injunction by the lower courts," Wadhia told me, "it's often at the expense of vulnerable people and, in this case, immigrants."
Prior to the Trump administration, the Justice Department typically understood that the justices viewed a Supreme Court stay of a lower court order as an extraordinary form of relief, and it rarely applied for such relief as a result. According to a November 2019 paper by University of Texas law professor Stephen Vladeck, "during the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight such applications — averaging one every other Term."
By contrast, "in less than three years, [Trump's] Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone)."
The Supreme Court, meanwhile, has rewarded the Trump Justice Department's behavior. Vladeck finds that the Trump administration achieved a full or partial victory in about two-thirds of cases where it seeks to temporarily block a lower court opinion. What was once extraordinary is now quite ordinary.
The Trump administration, for what it's worth, often argues that Supreme Court intervention is necessary because individual trial judges have handed down an unusual number of nationwide injunctions — orders blocking a federal policy throughout the entire country — since Trump became president. And there are good reasons to be cautious about such injunctions. If Joe Biden is president next year, many Republican judges could try to halt literally any action taken by the new administration.
But according to Gelernt, there's a good reason why lower courts have so frequently blocked Trump's immigration policies — and why litigators often feel compelled to seek such relief. "The reason why there have been more national injunctions in the immigration area," he told me, "is because the Trump administration has enacted so many policies that harm so many people immediately, leaving no choice but to seek immediate national relief."
It remains to be seen whether the Court will be equally zealous in policing lower court injunctions once Democrats control the elected branches of government. For the moment, however, it is hard to escape the impression that the Court is reaching out to do favors for the Trump administration, even if doing so means ignoring rules intended to prevent the Court from deciding cases too rashly.
As Sotomayor wrote in her Wolf dissent, the Court's "has been all too quick to grant the Government's 'reflexiv[e]' requests," at least when those requests come from Trump's lawyers.
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