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Midnight Orders

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Midnight Orders

Increased use of the shadow docket endangers the Supreme Court’s institutional legitimacy. October 21, 2021
Politics and law

Following the general pattern of American life in recent years, what was once extraordinary is fast becoming normal. Case in point: the increase in emergency orders issued from the Supreme Court’s “shadow docket,” which have academics, columnists, lawmakers, and justices arguing not only over what the Court says, but over what it does not say. The rise in shadow-docket decisions may erode public trust in the judiciary.

The shadow docket refers to the list of orders that require quick action from the high court without comment, ranging from routine scheduling matters to emergency-relief requests. An emergency order, typically issued in response to an approaching deadline that would adversely affect the rights of a party, can temporarily grant or suspend a lower-court injunction for the duration of the pending litigation. The term, coined in 2015 by law professor William Baude, originally connoted the obscurity of the orders list. But it now sounds ominous, thanks largely to media portrayals of a new conservative majority of justices seeking to impose its worldview on the nation.

The story begins with the explosion in nationwide injunctions. These were a recent phenomenon, but their frequency ballooned in response to controversial Donald Trump-era executive actions. Left-leaning parties forum-shopped for sympathetic federal judges, who issued sweeping injunctions of dubious constitutionality to halt such actions as the travel ban and construction of the border wall. This strategy, earlier deployed against the Obama administration’s DACA program, stymied the Trump administration’s efforts no fewer than 55 times from 2017 to early 2020. Compare that with the 12 nationwide injunctions issued against the George W. Bush administration and the 19 against the Obama administration, each of which lasted two terms.

The enormous consequences of these injunctions induced the Trump administration to seek emergency relief. Because the solicitor general plays a prominent role in Supreme Court litigation, his requests are more likely to catch the justices’ attention. According to law professor Stephen Vladeck, Trump’s Justice Department asked the Court to grant emergency relief 41 times over four years, far more often than the eight requests over the 16 years of the Bush and Obama presidencies. And the Supreme Court’s responses to litigants’ requests for emergency relief form a significant part of its shadow docket.

Formerly a mundane part of the high court’s duties, the shadow docket has now come under intense scrutiny. Nationwide injunctions are not the sole cause of the rise in shadow-docket activity. Technical and procedural developments, as well as Covid-19—which brought on a host of novel restrictions, notably on religious freedom, that resulted in more requests for emergency relief—have contributed to its increased use.

But the connection to injunctions is nonetheless undeniable. In the 2018 case Trump v. Hawaii, Justice Clarence Thomas noted the institutional consequences of plaintiffs racing to halt government actions through emergency orders, writing that nationwide injunctions “are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.”

Juxtaposing shadow-docket orders with cases that make their way through the “merits docket” helps explain Thomas’s warning. In the ordinary and more familiar merits process, disputes move up the ladder of federal appellate review, incorporating arguments from lower court judges, litigants, and amici curiae along the way. By the time the Supreme Court agrees to hear a case, at least two other opinions on the merits would ordinarily be available: one from the district court judge and one from a panel of three appellate judges. Though it receives thousands of petitions for certiorari annually, the Court grants only 60 to 80, a figure that has declined markedly over the decades.

Decisions from the merits docket, then, draw legitimacy not only from the Court’s position in our constitutional order but also from perceptions of procedural adequacy, a highly selective process of filtering meritorious and significant cases, and an adversarial system that gives each side a fair opportunity to make their best arguments.

But orders from the shadow docket cannot depend on procedure or persuasion to bolster their legitimacy. Litigants in shadow-docket matters cannot present fully developed briefs or argue before the justices. Unlike the predictable summertime trickle of new decisions from the merits docket, shadow-docket decisions can appear anytime, including at night. In keeping with longstanding historical practice, orders generally go unsigned (unless a justice issues a separate concurrence, dissent, or statement) and contain only summary reasoning—sometimes just a single sentence.

Because shadow-docket decisions are meant to be temporary, limited to the parties, and not made on the merits, they have traditionally carried no precedential weight. Recently, however, lower courts have looked to the shadow docket for guidance, especially during times of great uncertainty. Chief Justice John Roberts’s solo concurring opinion in the shadow-docket case South Bay Pentecostal Church v. Newsom, decided in May 2020, was cited in more than 100 cases over the following six months, sometimes in unrelated circumstances. Law professor Josh Blackman characterized its “staggering” impact as a “superprecedent.”

The shadow docket does not inherently place a thumb on the scale for either political side. After an early September order that declined to enjoin a Texas abortion restriction law temporarily, some progressives excoriated emergency orders as the novel tool of right-wing justices depriving Americans of their constitutional rights. But the order, grounded in procedural considerations, made clear that it did not address any of the substantive constitutional issues. And progressives who repeatedly sought nationwide injunctions against the Trump administration amplified the stakes of emergency orders; they are reaping what they sowed.

Still, a litigation system that overuses nationwide injunctions and shadow-docket orders risks drawing down reserves of the judiciary’s institutional legitimacy. Justices likely resent the need to resolve consequential matters in a few days. Play-by-play coverage of these decisions stokes the prevalent narrative of judges exercising political, not judicial, power. If the bench depends, as Federalist 78 has it, on “neither force nor will, but merely judgment” for its claim to authority, the shadow docket reveals little reasoned judgment. Regardless of where one stands on the merits, emergency orders should be placed in their proper context: as temporary, necessarily deficient, and bound to upset.

Photo by Kevin Dietsch/Getty Images

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