Theshadow docket (ornon-merits docket)[a] refers to motions and orders in theSupreme Court of the United States in cases which have not yet reachedfinal judgment,[b] decision onappeal, andoral argument.[1] This term especially refers tostays andinjunctions (preliminary relief), but also includessummary decisions andgrant, vacate, remand (GVR) orders. The phrase "shadow docket" was first used in this context in 2015 byUniversity of Chicago law professorWilliam Baude.
The shadow docket is a break fromordinary procedure. Such cases receive very limited briefings and are typically decided a week or less after an application is filed. The process generally results in short, unsigned rulings. In contrast, merits cases take months, include extensive briefing and public oral argument, and result in lengthy written opinions detailing the reasoning of the majority and concurring and dissenting justices, if any.
The shadow docket is used when the Court believes an applicant will suffer "irreparable harm" if its request is not immediately granted. Historically, the shadow docket was rarely used for rulings of serious legal or political significance. However, since 2017, it has been increasingly used for consequential rulings, especially for requests by theDepartment of Justice for emergencystays of lower-court rulings. The practice has been criticized for various reasons, including for bias, lack of transparency, and lack of accountability.
The term "shadow docket" was coined in 2015 byWilliam Baude,[2] who wrote:
Outside of the merits cases, the Court issued a number of noteworthy rulings which merit more scrutiny than they have gotten. In important cases, it granted stays and injunctions that were both debatable and mysterious. The Court has not explained their legal basis and it is not even clear to what extent individual Justices agree with those decisions. ... As the orders list comes to new prominence, understanding the Court requires us to understand its non-merits work – its shadow docket.[3]: 3–4, 5
— "Foreword: The Supreme Court's Shadow Docket",New York University Journal of Law & Liberty (January 2015)
The term has been used by some justices themselves, with JusticeElena Kagan calling the Court's "shadow-docket decision-making" "every day becom[ing] more unreasoned, inconsistent, and impossible to defend" in a dissent to a denial of an application for injunctive relief in the caseWhole Woman's Health v. Jackson (2021).[4] The phrase itself has been criticized by JusticeSamuel 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, withTed Cruz, a formersolicitor general of Texas, saying: "Shadow docket, that is ominous. Shadows are really bad, like really, really bad".[6]
In the Supreme Court's ordinary proceedings, cases are filed to the merits docket.[7] Cases are accepted if four justices decide tograntcertiorari (the so-calledrule of four), with the overwhelming majority being denied (around 80 out of 7,000–8,000 petitions forcertiorari are granted each term[8]: 15–16 ). Accepted cases then feature full briefings (including fromamici curiae, if any) and oral arguments,[7] with cases generally lasting months.[9] Finally, the Court issues a lengthy, signed majority opinion, in which the majority extensively explains its reasoning for the ruling.[7]
For the shadow docket, following an application to the relevantcircuit justice, they will decide whether to independently make a ruling or refer it to their colleagues.[8]: 3, 4–5 Applications are dealt with on an accelerated time frame, with decisions coming in a week or less.[10] Should a justice proceed alone, the parties in a case may request that other justices overrule them instead.[8]: 3, 4–5 According to the Court, there are four criteria for stays to be granted:
- that there is a "reasonable probability" that four Justices will grantcertiorari, or agree to review the merits of the case;
- that there is a "fair prospect" that a majority of the Court will conclude upon review that the decision below on the merits was erroneous;
- that irreparable harm will result from the denial of the stay;
- finally, in a close case, the Circuit Justice may find it appropriate to balance the equities, by exploring the relative harms to the applicant and respondent, as well as the interests of the public at large.[8]: 2–3
Shadow docket orders are usually unsigned and unexplained. Court observers may attempt to infer how the justices split based on signed concurrences and dissents, rather than the majority opinion.[11] In the Court's August 2020 – July 2021 term, the exact vote count was known in 14 cases out of the 73 emergency cases referred to the whole court (there were 150 such cases in total). There were 56 merits docket rulings during that period.[12] Inferences for judicial splits are inexact unless there are three public dissents forcertiorari denials or four for all other orders.[7]
Congress has specifically authorized each justice to issuestays pendingcertiorari under28 U.S.C. § 2101(f). Under the Supreme Court'sRules 22 and23, requests for stay are directed to the assignedcircuit justice, who can either grant, deny, or refer the request to the full court.
Before 1990, the rules of the Supreme Court also stated that "a writ of injunction may be granted by any Justice in a case where it might be granted by the Court."[13] However, this part of the rule (and all other specific mention of injunctions) was removed in the Supreme Court's rules revision of December 1989.[14][15] Nevertheless, requests for an injunction under theAll Writs Act are sometimes directed to the circuit justice.
One influentialin-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. In order that it be available, the applicants' right to relief must be indisputably clear.
Subsequent in-chambers opinions have cited this "indisputably clear" standard, includingLux v. Rodrigues (2010) (Roberts, in chambers) andHobby Lobby v. Sebelius (2012) (Sotomayor, in chambers).
An order of the full court inRespect Maine PAC v. McKee (2010) denied an injunction, quotingOhio 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]
InWheaton College v. Burwell (2014), the full court granted an injunction over a dissent authored by JusticeSotomayor, who argued that the "indisputably clear" standard should apply.[3]: 15 Chief JusticeRoberts, in a lone concurrence inSouth Bay United Pentecostal Church v. Newsom (2020) ("South Bay I"), also applied the "indisputably clear" standard to deny a request for an injunction even when it was referred to the full court. But inRoman Catholic Diocese of Brooklyn v. Cuomo (2020) andTandon v. Newsom (2021), a majority of the court granted injunctions under the lower "likelihood of success" standard of theWinter factors, the ordinary test for apreliminary injunction.
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 1953stay of theexecutions of Julius and Ethel Rosenberg and the reinstatement inSchlesinger v. Holtzman (1973) of an emergencyinjunction ordering a halt to theNixon administration'sbombing of Cambodia.[19][20]
A major reason why the Court has used the shadow docket has been to manage its caseload. InMaryland v. Baltimore Radio Show, Inc. (1950), JusticeFelix Frankfurter explained for a unanimous court why the shadow docket was necessary,[11] stating: "If the Court is to do its work it would not be feasible to give reasons, however brief, for refusing to take these cases. The time that would be required is prohibitive."[21]
Use of the shadow docket for important rulings has increased precipitously since 2017.[10][22] This coincided with thefirst presidency of Donald Trump, when the Department of Justice sought emergency relief (generally to stay lower court rulings against its executive actions[23]) from the Supreme Court at a far higher rate than had previous administrations, filing 41 emergency applications over Trump's four years in office (by comparison, over the prior 16 years theObama administration and theBush administration together filed only eight emergency applications).[10]
Rulings made by way of the shadow docket during Trump's term included rulings overhis travel ban,[clarification needed] the diversion of military funds to the construction of theMexico–United States border wall, theprohibition of transgender people from openly serving in the United States military, use of thefederal death penalty,[clarification needed] and restrictions onasylum seekers fromCentral America.[24][10] The Supreme Court granted 28 of the Trump administration's requests; in the 16 years prior, only four were granted.[22]
Following Trump's departure from office, the Court has made rulings against theBiden administration, putting an end to a federal eviction moratorium and nullifying the White House's attempt to end theRemain in Mexico policy. The latter was decided in an order two paragraphs long.[25] In September 2021, the shadow docket gained more prominence after the Court declined to block theTexas Heartbeat Act from being enforced and decided some technical matters concerning how it could be challenged inWhole Woman's Health v. Jackson.[6]
In 2021, both theHouse Judiciary Committee and itsSenate counterpart held its first hearings on the practice in February and September respectively.[6]
Coinciding with other attempts to reform the Supreme Court, Senate Democrats introduced legislation in 2024 aiming to require the Court to provide written explanations of its decision and disclose how the Justices voted.[26]
According to a survey conducted by theNew York Times of 65 sitting judges, 47 disagreed that the U.S. Supreme Court had made appropriate use of the shadow docket since the onset of the second Donald Trump administration. Only 12 judges said the shadow docket had been used appropriately.[27]
The court has granted applications for stay in the following cases:[28][29]
Critics contend that the shadow docket gives the Supreme Court an unreasonable amount of power. Nicholas Stephanopoulos, a law professor atHarvard University, has argued that the "idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about ... If courts don't have to defend their decisions, then they're just acts of will, of power. They're not even pretending to be legal decisions."[30]
.jpg)
David D. Cole, the national legal director of theAmerican Civil Liberties Union and a professor atGeorgetown 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, theCharles Alan Wright chair of federal courts atUniversity of Texas School of Law, has lambasted the novel uses of the shadow docket, writing in theNew 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]
Solicitor General of AlabamaEdmund LaCour has defended the use of the shadow docket, stating that due to "time-sensitive matters" it would be inappropriate to use the usual channels[32] and its existence was important to keep the Court functioning properly;[6] formerU.S. Senate Judiciary chairChuck Grassley saying that the Court's decision inWhole Woman's Health v. Jackson was "something very ordinary".[32]
The shadow docket has been criticized for a lack of transparency.[33] William Baude has argued that the shadow docket makes it "hard for the public to know what is going on" and "hard for the public to trust that the court is doing its best work".[22] Similarly,House Judiciary courts subcommittee chairHank Johnson has contended: "Knowing why the Justices selected certain cases, how each of them voted, and their reasoning is indispensable to the public's trust in the court's integrity."[34]
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".[24]
Criticisms of the lack of transparency of the shadow docket preceded the term's coinage in 2015. In 2014,New York Times Supreme Court correspondentAdam Liptak criticized the Court's opinions as "not abstruse. They are absent." This was in response to Chief JusticeJohn Roberts's comments in his2005 confirmation hearing that he hoped "we haven't gotten to the point where the Supreme Court's opinions are so abstruse that the educated layperson can't pick them up and read them and understand them".[11]
Baude has spoken to a bias present in the rates at which requests are granted, saying that the "government, especially the federal government, has a special ability to get the court's attention."[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.[35]: 126–127
— "The Solicitor General and the Shadow Docket",Harvard Law Review (2019)
The shadow docket has also been criticized for its lack of rigor. Vladeck has argued that the shadow docket "put[s] the justices in the position of deciding weighty legal issues at a very early stage of litigation, in a context in which it is often unclear exactly what the relevant facts are and in which legal arguments have not been fully developed."[7]
Similarly, Shoba Sivaprasad Wadhia, a professor and associate dean atPenn State Law, has stated that "it's hard to imagine that [the justices] have the same deliberation or time to think about the varying arguments by each party."[2] Ian Millhiser, a journalist atVox who covers the Supreme Court, has argued that "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."[2]
Alito defended the rigor behind the decisions made in the shadow docket, highlighting how time constraints limited what could be expressed in the Court's opinions and how the writing had to be done carefully: "Journalists may think that we can just dash off an opinion the way they dash off articles".[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,[35]: 126–127 other criticism has been directed at the significant uptick in the use of the shadow docket.
In September 2019, JusticeSonia Sotomayor criticized the government's over-reliance on the practice in a dissent to an unexplained immigration order, saying that "the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively." She went on further, stating that "Not long ago, the Court resisted the shortcut the Government now invites. I regret that my colleagues have not exercised the same restraint here."[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."[36]
JusticeSamuel Alito has defended the increased use of the shadow docket, saying it was due to increased applications and comparing it to "complaining about the emergency room for treating too many accident victims who come in".[37]
While the Supreme Court has had a 6–3 conservative majority since the appointment of JusticeAmy Coney Barrett in October 2020, the shadow docket had seen increased use, and the Court treats these orders as precedential despite the lack of opinions attached to the order.[38] The remaining liberal justices,Stephen Breyer,Sonia Sotomayor, andElena Kagan, had spoken in various dissents to shadow docket orders on their questionable use. Chief JusticeJohn Roberts also joined in a dissent on the use of shadow dockets in a case involving theClean Water Act that had been authored by Kagan.[39]
As the highest court in the United States, the Supreme Court's rulings haveprecedential value, being used by the lower courts as guidance for their own rulings.[7][37] However, by their very nature, shadow docket orders are usually unexplained and are not intended for use as such.[7] Despite that, the use of shadow docket orders as precedent has increased in recent years.[7] InTrump v. Boyle, the Supreme Court wrote, "Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases."[40]
Writing in theHarvard Journal of Law and Public Policy, JudgeTrevor N. McFadden of thefederal District of Columbia district court argued that not all shadow docket decisions should be used for precedent: he said that lower courts should only focus on stays issued by the full Court and that this instruction is "true even if the stay grant features little legal reasoning, and may well be true even when there is no reasoning."[41]: 882
For example, with respect to denials ofcertiorari,Justice Frankfurter wrote:
Inasmuch, therefore, as all that a denial of a petition for a writ ofcertiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.[21]
| The court |  | |
|---|---|---|
| Procedures | ||
| Current members | ||
| Retired justices | ||
| History |
| |
| Lists of justices and nominees | ||
| Statutes affecting court size | ||
| Functionaries | ||
| Location | ||
| Related | ||
