Educational Supplement to “The Shadow Docket Is Not Hyperbole”

This article provides basic concepts and definitions to supplement “The Shadow Docket Is Not Hyperbole.”

BASIC CONCEPTS

1. What is jurisdiction? “Juris” is Latin for law. (See e.g. jurisprudence, juris doctorate, juror, jury.) In this case, juris is combined with diction (dictionary, dictate) to mean the right to hear or to speak to the law. Different courts have different jurisdictions denoted either by subject — criminal courts hear criminal cases, civil courts hear civil cases — or by geography. Circuit courts, for example, can only hear and decide cases in their respective circuit. The U.S. is split into 11 circuits. So, a 5th circuit court can only hear cases in the fifth circuit: Texas, Louisiana, and Mississippi.
2. Does the Supreme Court have a limited jurisdiction? Yes! The Supreme Court’s jurisdiction is defined in Article III, Section 2 of the U.S. Constitution.
3. What is a Docket? A docket can refer to: a) a calendar of pending cases awaiting action by the court (also known in the Supreme Court as a merits docket), b) a formal statement of the court’s proceedings in a case, including the facts, history, analysis, decisions and opinions. c) the case file where the clerks keep all the motions and other court documents for a case. This article will focus on the first two definitions. The third definition, regarding case files, is not relevant.
4. What is Certiorari? Certiorari, often referred to as “cert,” is a request or “writ” to a superior court, from a party who has not received or cannot receive justice in an inferior court. More specifically, it is a request to have the superior court either call up the records of an inferior court proceeding for review, or to remove the ongoing proceeding from the inferior court to the superior court. A superior court “grants cert” when it takes up the request.
5. What is a Merits Case? A merits case, merits docket, or trial on the merits, is a decision or ruling based on the facts or evidence presented and the law applied to those facts. In a merits case, the technical or procedural defenses — such as timeliness or evidentiary issues — have either been overcome or are inconsequential.
6. What is an Injunction? An injunction is a court order requiring a person or entity to do or to cease doing a specific act. A well-known type of injunction would be a restraining order where, for example, an abusive spouse is forbidden from getting within a certain distance of the other.
7. What is a Nationwide Injunctions? This is an injunction on a much broader scale, usually in opposition to a federal action. For example, in 2017 the Hawaii State Attorney General filed a memorandum to stop the Trump administration’s Muslim travel ban. National injunctions are unusual in that they are filed by third-party nonlitigants — people who are not directly involved in the case — on behalf of a constituency or of the country as a whole.
8. What is a Standard of Review? A standard of review, also known as a standard of decision, is the agreed upon method or standard by which a case is decided, as determined by statute or precedent. For example: In a criminal case the standard of review is that the defendant must be found guilty beyond a reasonable doubt. “Beyond a reasonable doubt” is a standard of review. (This is a simplified explanation as you will see later.) Law students might recognize the IRAC format that is to be used when writing briefs: Issue, Rule, Analysis, Conclusion. The standard of review is found in the rule, the R in IRAC. The goal then is to determine if this case satisfies the rule.
9. What does per curiam mean? A per curiam decision, also known as an unnassigned or unsigned decision, is one where the court collectively issues a decision without disclosing how the individual justices voted. These decisions often do not include a lot of discussion or analysis since, typically, a per curiam decision is unanimous. Also, per curiam decisions are not usually issued for a trial on the merits where the full reasoning needs to be documented.
10. What is an amicus curiae brief? This is a brief presented by “friends of the court,” experts who are not directly involved in the litigation but are allowed to inform and advise the justices as to matters of fact or law that might otherwise escape consideration as a natural result of the respective parties controlling the information presented in favor of their own interests. These advisors are often members of organizations that specialize in the matter at bar.
11. What is a summary decision? A “summary decision,” also known as a “summary judgment” or “judgment as a matter of law” is used by courts to hand down a judgment, without a full trial, when everybody agrees to the facts of the case and a decision simply needs to be made. A party may ask the judge to make a summary judgment if they believe the outcome is obvious and to avoid the time and expense of a trial. Summary decisions are not bad things and are not unusual. Summary decisions are a very valuable tool in the court’s arsenal.
12. What is an emergency petition or an extraordinary writ? Note that the words “writ,” “petition,” and “order” tend to be used interchangeably when referring to these types of petitions. A petition for an extraordinary writ is governed under Supreme Court Rule 20. It is a discretionary practice granted sparingly under exceptional circumstances where adequate relief cannot be obtained any other way. There are various types of writs — certiorari, habeas corpus, mandamus, prohibition — but they all fall under this same strict guideline. (You can also find here the full Supreme Court Rules and Guidance.)