The Shadow Docket, Demonized

Had it been used to stay an execution, it would be glorified. But this time, the outcome was contrary to pop desires and, in my view, wrong, even though the Supreme Court, in my view, is often wrong. When the Supreme Court refused to enjoin Texas’ sweetest gift to the Democrats ever, SB8, the reaction from the left wasn’t just to catastraphize the ruling at the brutal back door murder of Roe v. Wade, but proof that the Supreme Court had to go.

There were the usual calls to expand the Court to put a majority of reliable and dedicated progressives on the bench, so the Court would never rule “wrong” again. But Jamelle Bouie at the New York Times found a new demon to slay: The Shadow Docket.

The orders docket includes nearly everything else the court must decide — which cases to hear, procedural matters in pending cases, and whether to grant a stay or injunction that pauses legal proceedings temporarily. There are no oral arguments in these cases and, as in Mr. Warner’s situation, they are often decided with no explanation.

This docket operates in such obscurity that I call it the “shadow docket.”

No, that wasn’t Bouie, but William Baude, who raised it in the context of the Supreme Court’s rejection of a last minute stay of execution. Back then, the Shadow Docket largely escaped notice as it decided thousands of emergency applications without full briefing, oral argument or, in most instances, explanation. A life was on the line and the Court’s reply was “denied.”

But in rejecting the emergency stay in Whole Woman’s Health v. Jackson, the Supreme Court issued a per curiam opinion and four dissents. As the shadow docket goes, this one was as transparent as it gets, not that a lot of people read, or understood, the rationale. And yet, it proved the Supreme Court is too powerful to Bouie and must be destroyed.

The Supreme Court’s recent reliance on the so-called shadow docket to make major rulings — on display, this week, in its decision to let Texas end legal abortion after six weeks, at least for now — throws the problem of judicial power in a representative democracy into sharp relief.

Had the plaintiff not sought emergency relief, there would have been no shadow docket petition on which to rule. Having petitioned the Court for relief, the Court ruled. This, by his reasoning, is “the problem of judicial power in a representative democracy.”

In the past five months, the Supreme Court has used the shadow docket to strike down Covid restrictions on group religious activities in private homes, force President Biden to reinstate the Trump-era “remain in Mexico” policy for asylum seekers from Central America and block the extension of an emergency federal ban on evictions, putting countless Americans at risk of homelessness.

Ironically, each of these instances of the Supreme Court being “too powerful” relates not to an act of Congress but to an exercise of unilateral executive power. The president or his agents signed a piece of paper, but it’s the Supreme Court that’s too powerful.

The vote on the Texas abortion law came on Wednesday, in the dead of night, when a narrow majority of the court declined to stop Texas from instituting a new ban on abortions past the sixth week of pregnancy, which is often before many women even know they are pregnant.

In the dead of night makes it sound pretty darn nefarious. Would it have been different if they didn’t issue the decision until the next morning? It might have been better had the issued the decision the day before, but it takes time for four dissenters to write their opinions. Should the Court have issued its per curiam decision without any dissents that wasn’t done when the majority’s one (longish) paragraph decision was ready to go?

Another way to put this is that the court has essentially nullified the constitutional rights of millions of American women without so much as an argument. It has shaken the constitutional landscape — refusing to apply the law as it was decided in previous cases — while shielding itself from the scrutiny that might come under normal circumstances. The court has transformed the constitutional status quo under cover of night. This isn’t judicial review as much as it is a raw exercise of judicial power.

This hysterical framing, that the Court has “essentially (which does as awful lot of heavy lifting) nullified” anything doesn’t change the fact that there was an emergency petition brought before the Court. What’s a court to do, ignore it? Let it go until the next term begins in October and then request full briefing and oral argument? It’s an emergency petition, an application for the Court to do something now. Presumably, the response is yes, but by bringing an emergency petition, all actions should freeze in place, meaning that the law being challenged would not go into effect until the Court could consider it for realsies rather than on an emergency basis.

In this instance, it would have made a lot of people very happy had that been the way emergency petitions were handled, because that was the outcome they wanted from the Court. But what about all the emergency petition where the opposite outcome is desired. What if the law, rule or executive decree under attack provided food to the hungry, medical care to the dying, extra unemployment payments to the unemployed, an eviction moratorium? Would those have elicited the same response, to preserve the status quo ante and let people starve, die or be evicted?

The court’s abuse of the shadow docket is in that category: actions that threaten to place the rule of men over the rule of law. It’s not that the court is political — that is to be expected — but that its conservative majority is acting in arbitrary, secretive ways, with hardly any justification other than its own power to do so.

There has been a massive campaign afoot to confuse the Court’s purpose in the heads of the unduly passionate to delegitimize its existence and function. How quickly people forget that it’s the fact that the Court is not subject to popular whim that enabled it to decide Brown v. Board, Obergefell v. Hodges and, yes, Roe v. Wade as it did.

The evil here isn’t the shadow docket, which is nothing more than the interim decisions emergency petitions demand, but that the insipid outrage at the outcome compels the Bouie’s to burn the Court down. Or build it up to guarantee that only the outcomes he adores will issue, in which case the shadow docket will magically morph into the greatest tool of justice ever created.