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What’s Happening in the Supreme Court’s Shadows Is Shaping America

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Vladeck holds the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law. His latest book is The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic

The biggest headlines about the Supreme Court typically involve one of two subjects: the major substantive rulings the Justices hand down each spring (like the decisions to eliminate a federal constitutional right to abortions and expanding a federal constitutional right to keep and bear arms in June 2022); and the confirmation process for new Justices (like the successful nomination of Ketanji Brown Jackson to succeed Stephen Breyer in February 2022). Indeed, a casual observer might draw the impression that these are the two contexts in which the Court plays its biggest role.

The reality is far more complicated. By volume, each year’s substantive rulings make up only a tiny sliver—roughly 1%—of the Supreme Court’s overall docket. Most of the Court’s work comes through unsigned, unexplained, and opaque orders that, in 2015, a University of Chicago law professor William Baude dubbed “the shadow docket.” And although such orders are as old as the Supreme Court, for most of the Court’s history, its effects were limited. Americans could reasonably ignore it—and we did. Until now.

Since 2017, the Court’s new conservative majority is using these inscrutable orders to intervene far more often than ever before in some of the most controversial issues our country faces. From abortion to asylum; from elections to executions; from COVID-19 vaccinations to the Clean Water Act, and from redistricting to religion, the Court is regularly using—and abusing—the shadow docket in ways that directly affect all of us.

Take, for example, the 2022 midterms. After two different federal trial courts had ordered Alabama to redraw its congressional districts—to create a second “majority-minority” district out of seven in a state in which 28% of the population identifies as Black—the Supreme Court froze those rulings through an unsigned, unexplained order in February 2022. No majority opinion explained why the lower courts were wrong; the Court just acted by fiat.

History repeated four months later, when the Court likewise put back into effect the congressional district maps drawn in Louisiana—after multiple lower courts had blocked those, as well. Those two rulings—and their effects—meant that somewhere between five and 10 House seats in the 2022 election were safe Republican seats rather than competitive (or safe Democratic seats). And given that Republicans won the House by five seats, that means that the Republican majority might not just be a result of Supreme Court rulings, but of Supreme Court rulings that provided no analysis or explanation.

And in April 2022, the Court put back into effect a Trump-era regulation that reduced pollution limits for certain power plants after a federal judge had blocked it five months earlier. Although the district court had provided a lengthy explanation for why the rule was unlawful, five of the Court’s nine Justices voted to “stay” the district court’s injunction—again, with no explanation. The lack of explanation was especially problematic, as Justice Elena Kagan pointed out in her dissent, because there was no evidence that the injunction had caused the kind of “irreparable harm” that the Court has said is a prerequisite for obtaining such relief.

What’s telling about both of these rulings is that Chief Justice John Roberts joined the three Democratic appointees in dissent both times. For him, the issue wasn’t whether the lower courts were correct; it was that the Court is generally not supposed to freeze a lower court ruling pending appeal absent extraordinary circumstances, and those circumstances were noticeably lacking both times. Roberts thus went out of his way to flag that his fellow conservatives were taking unjustified procedural shortcuts—and weren’t deigning to explain why.

These two rulings are not outliers. Similarly unexplained rulings from the Court allowed Texas’s controversial six-week abortion ban to go into effect in September 2021; blocked an array of blue state COVID mitigation measures throughout 2021; cleared the way for all 13 of the federal executions carried out in the last six months of the Trump administration (including seven in which lower courts had blocked the executions); and allowed President Trump to carry out an array of controversial immigration policies that no court ever actually upheld as legal. Almost overnight, the shadow docket thus became at least as significant in the effects it produced as the Court’s more substantive rulings on its “merits” docket.

Read More: Texas’ Abortion Law Could Worsen the State’s Maternal Mortality Rate

A common retort from the Court’s conservative defenders (and some of the Justices themselves, including Justice Samuel Alito in a September 2021 speech at Notre Dame Law School) is that these rulings are nothing new under the sun—that the Court hasn’t changed any of its behavior in these kinds of cases, and that resolving these kinds of emergency appeals without full briefing, oral argument, or detailed explanations is consistent with its historical approach.

Those defenses are simply wrong. The Court in the past six years has repeatedly acted in ways that differ in both kind and degree from how it dealt with emergency appeals in the past—intervening more often to both undo lower-court rulings and directly block government action; doing so in ways that have far broader impacts on all of us than, for instance, deciding whether a particular execution in a particular state can go forward; and treating these unsigned, unexplained orders as precedents for future rulings. More fundamentally, the Justices’ behavior bespeaks an indifference to those departures—and their implications—that have grave long-term implications for public confidence in the integrity of the Court. As Justice Kagan put it in dissenting from the September 2021 Texas abortion ruling, the Court’s recent use of the shadow docket “every day becomes more unreasoned, inconsistent, and impossible to defend.”

And, as Chief Justice Roberts’s votes underscore, criticism of the shadow docket—as opposed to the headline-generating substantive rulings—does not neatly sort the Justices into their ideological camps. Instead, deeper appreciation of what the shadow docket is and how it was used historically only underscores how it’s being abused today—and why liberals and conservatives alike should be alarmed by the Court’s behavior regardless of the bottom lines the Justices are reaching.

But even for those who are less troubled by the Justices’ behavior, what can’t be gainsaid is the importance of paying more attention to what happens on the shadow docket; it’s impossible to fully understand the Court today, and the power it exercises, without it.

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