Shadow docket
This especially refers to stays and injunctions (preliminary relief), but also includes summary decisions and grant, vacate, remand (GVR) orders.
On the other hand, merits cases take months, include oral argument, and result in lengthy opinions detailing the reasoning of the majority and concurring and dissenting justices, if any.
[4] The phrase itself has been criticized by Justice Samuel Alito, who called it "sinister" in a university speech and saying it was "used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways",[5] and by senators, with Ted Cruz, a former solicitor general of Texas, saying: "Shadow docket, that is ominous.
One influential in-chambers opinion denying an injunction, Communist Party of Indiana v. Whitcomb[16] (1972) (Rehnquist, in chambers) noted that While a Circuit Justice of this Court apparently has authority under Supreme Court Rule 51[c] to grant [...] a mandatory injunction, usage and practice suggest that this extraordinary remedy be employed only in the most unusual case.
An order of the full court in Respect Maine PAC v. McKee (2010) denied an injunction, quoting Ohio Citizens for Responsible Energy, Inc. v. NRC (1986) (Scalia, in chambers) that a request for an injunction "demands a significantly higher justification" than a request for a stay, because it "does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.
"[17] In Wheaton College v. Burwell (2014), the full court granted an injunction over a dissent authored by Justice Sotomayor, who argued that the "indisputably clear" standard should apply.
The shadow docket was used primarily for issuing routine orders, such as giving parties more time to file a brief or extending oral arguments.
[18]: 2 However, on rare occasions, it was used for consequential rulings such as the 1953 stay of the executions of Julius and Ethel Rosenberg and the emergency injunction ordering a halt to the Nixon administration's bombing of Cambodia.
[10] Rulings made by way of the shadow docket during Trump's term included rulings over his travel ban,[clarification needed] the diversion of military funds to the construction of the Mexico–United States border wall, the prohibition of transgender people from openly serving in the United States military, use of the federal death penalty,[clarification needed] and restrictions on asylum seekers from Central America.
[25] In September 2021, the shadow docket gained more prominence after the Court declined to block the Texas Heartbeat Act from being enforced and decided some technical matters concerning how it could be challenged in Whole Woman's Health v.
"[27] David D. Cole, the national legal director of the American Civil Liberties Union and a professor at Georgetown University Law Center, has likewise said that if the Court can "make significant decisions without giving any reasons, then there's really no limit to what they can do".
[22] Steve Vladeck, the Charles Alan Wright chair of federal courts at University of Texas School of Law, has lambasted the novel uses of the shadow docket, writing in the New York Times: Until this term, it would have been unheard-of to articulate a new constitutional rule while issuing an emergency injunction to enforce it ... A majority of the justices are increasingly using procedural tools meant to help them control their docket to make significant substantive changes in the law, in defiance not only of their own standards for such relief, but of fundamental principles of judicial decision making.
"[31] The Economist has argued that the shadow docket displays a "deficit of transparency and accountability",[10] while Steve Vladeck has criticized how decisions are "handed down at all hours of the day ... with little opportunity for public involvement or scrutiny.
"[7] He has argued: "For a Court whose legitimacy depends largely on the public's perception of its integrity, the growth of unseen, unsigned, and unexplained decisions that disrupt life for millions of Americans can only be a bad thing".
"[22] Vladeck further criticized this apparent bias: With a newly solidified bloc of five conservative Justices, it is not exactly surprising that a Republican administration would generally fare well ... it is not obvious that it is a positive development ... By waiting for most cases to go through multiple layers of review by lower courts ... the Court gives itself the benefit of multiple rounds of briefing and argument ... To abandon this norm only in cases in which the federal government is the complaining party is to invite serious objections grounded in fairness and equity ... such a shift gives at least the appearance that the Court is showing favoritism not only for the federal government as a party, but for a specific political party when it's in control of the federal government.
[5] Although over the years the justices have sought to assert that it is "a court of final review and not first view", with the maxim being repeated in 11 of the October 2018 term's cases,[32]: 126–127 other criticism has been directed at the significant uptick in the use of the shadow docket.
"[23] David Cole has similarly argued that "relief should be restricted to the most egregious cases truly requiring expedited action, yet it is increasingly being applied to run-of-the-mill disputes.
[35] The remaining liberal justices, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, had spoken in various dissents to shadow docket orders on their questionable use.
Chief Justice John Roberts also joined in a dissent on the use of shadow dockets in a case involving the Clean Water Act that had been authored by Kagan.
