THE “SHADOW DOCKET” IS NOT HYPERBOLE
No Opinions, No Hearings, No Standards of Review, No Lower Court Guidance, No Accountability
This is the first in a series of articles that looks at issues around judicial integrity and a crises of trust in the U.S. justice system.
On Thursday, February 18, 2021, the U.S. House of Representatives Committee on the Judiciary held a Hearing and there is largely bipartisan support to pass court reform imposing guidelines on the Supreme Court to increase transparency.
The unspoken subtext of the testimony provided is that the Supreme Court has gotten lazy. And sloppy. Their decisions sometimes appear arbitrary at best, and prejudicial at worst. The lower courts are routinely overturned without guidance, and State legislators are often at a loss to interpret Court decisions.
Much of the Hearing centered around the expert testimony of University of Texas School of Law Professor Stephen I. Vladeck, based on his Article published in the Harvard Law Review. (Vladeck, Stephen I., The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123 (Nov. 2019). I will quote liberally from Vladeck’s testimony as well as from Amir Ali, DC Office Director & Attorney for the Macarthur Justice Center; and Loren Alikhan, Washington DC Solicitor General.
An accompanying article, Educational Supplement to “The Shadow Docket Is Not Hypberbole,” has been published to go over basic concepts and definitions related to this issue. I have boldfaced the defined terms as they appear throughout the article for your reference.
WHAT IS A SHADOW DOCKET?
The shadow docket “comprises emergency orders and summary decisions not found on the court’s main docket. Here the justices make their decisions based on shorter than usual briefs without oral argument and under a tight timeline. The justices are also not required to publicly record which way they have voted, and as a result the public has little or no insight into the court’s decision.” (Johnson, Hearing at 00:00:11–00:05:35.)
A shadow docket is a range of orders and summary decisions that are made outside of the court’s normal procedures. The term “shadow docket” was coined in a Working Paper published in 2015 by William Baude for the University of Chicago Law School. (William Baude, “Foreword: The Supreme Court’s Shadow Docket” (University of Chicago Public Law & Legal Theory Working Paper №508, (2015).) While it has been suggested by some that the terminology is overly-provocative, the word “shadow” is appropriate in that it indicates that something is hidden or that the docket is somehow opaque. Here is a brief list of how “shadow” would apply, taking into account the varying definitions of the word “docket.”
The Shadow Docket as a Calendar of Pending Cases.
- The case does not appear in the court’s calendar.
- There is no notice that the case is pending a decision.
- There is usually no explanation of how the case came to be chosen by the court for consideration.
The Shadow Docket as a Formal Statement of the Court’s Proceedings.
- Often or usually does not provide the standard of review that was applied in deciding the case.
- Often or usually does not provide guidance by which the lower courts can apply precedent.
- Does not include, in the proceedings, a hearing or any oral arguments.
- Often or usually is per curiam.
WHY IS CONGRESS CONCERNED?
The shadow docket has become a center of concern for the judiciary committee due to the importance of the cases being decided, the increased prevalence of the practice, the divisiveness of many of the decisions, the lack of deference to lower court findings, and the overzealous use of emergency orders.
The Trump administration, in one four-year term, sought five times the number of petitions requested by the previous two administrations — 16 years under Bush and Obama — combined.
IMPORTANCE AND IMPACT:
There is little disagreement about the prevalence or the impact of the practice in recent years. As Representative Hand Johnson, D-GA, noted in his introduction to the Hearing:
“Over the last year alone, decisions on the shadow docket have effectively ended the 2020 census count, cleared the way for the first Federal executions in 17 years and have covered some of the last administration’s most controversial policies such as a border wall, the travel ban, abortion and transgender rights. Matters relating to or impacted by the COVID-19 pandemic are also on the shadow docket including State election laws and State rules limiting attendance at places of worship.” (Johnson, Hearing at 00:00:11–00:05:35)
PREVALENCE:
While it is not unusual for the Federal government to request emergency or extraordinary petitions for review, the solicitor-general under the Trump administration, in one four-year term, sought five times the number of petitions requested by the previous two administrations — 16 years under Bush and Obama — combined. (See Johnson, Hearing at 00:00:11–00:05:35. See also Vladeck, Stephen I., The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123 (Nov. 2019).
Nor can the rise of shadow dockets be attributed to the Court’s workload. According to Adam Feldman, J.D., PhD, legal data analytics consultant, quantitative judicial scholar and professor, and Supreme Court blogger, “This term saw the fewest signed decisions in over 100 years. The 53 signed decisions represent the court’s lowest number since 41 in OT 1862 during the Civil War. Prior to that, you have to go back to OT 1849 to find another term with fewer than 53 signed decisions.”
This graph shows the dramatic decrease in the number of merit cases handed down by the court annually. (Final Stat Pack for October Term 2019 (updated), (July 10, 2020).) (See also Hearing, Vladeck at 00:18:53 and 00:23:37.)
This term saw the fewest signed decisions in over 100 years. The 53 signed decisions was the lowest since the Civil War.
Alikhan put a finer point on this, stating that, “the court is hearing fewer merit cases than ever, so they could easily translate this kind of 20 to 30-odd cases that we’re talking about as the problematic shadow docket cases onto a merits calendar and I think get that work done pretty quickly.” (Alikhan, Hearing at 01:30:04–01:30:47.) The need to issue shadow dockets, brief in length and immediate in execution, is likely not predicated on factors related to workload.
DIVISIVENESS:
Per curiam decisions are normally used when the decision is unanimous. But that is not what has been happening in these cases. “During the October 2017 term, Justice Kennedy’s last, only two shadow docket orders provoked four public dissents. Over the next two terms there were twenty. In the October 2019 term there were 11 5–4 shadow docket rulings.” (Vladeck, Hearing at 00:18:53–00:23:37.)
“During the October 2017 term, Justice Kennedy’s last, only two shadow docket orders provoked four public dissents. Over the next two terms there were twenty. In the October 2019 term there were eleven 5–4 shadow docket rulings.”
The decisions were likely split along ideological lines, but nobody really knows since the justices do not disclose how they voted.
In cases that are as divisive as voting rights, religious rights, and the death penalty, it is of extra importance to have not just an explanation of the reasoning behind the decision, including a well-worded dissent, but also to take advantage of all of the benefits of a trial on the merits, including the opportunity for the Court to engage in a full consideration of the issues that occurs when attorneys are allowed to prepare a case through research and deliberations.
“When ruling on an emergency request, the Court may lack a developed record, confront claims unconstrained by the narrowing process of certiorari, or face arguments that lack full consideration through the reasoned opinions of multiple appellate courts. There’s also no opportunity for oral arguments which deprives the justices of the opportunity to clarify the scope of claims, the practical consequences of a particular result and the specifics of the record,” as well as a diminished opportunity to hear amicus curiae briefs.
“The shadow docket also limits the ability of the members of the Court to formally deliberate.” (Alikhan, Hearing at 00:34:11–00:39:18 mark.) This exchange of ideas is simply not made available in a shadow docket case.
LACK OF DEFERENCE TO FACTFINDING:
The Court has appellate jurisdiction. In relation to that, the Court must exercise a supervisory function over the lower court. But the shadow docket undercuts this function.
“Here we have the very busy lower court judges holding hearings, hearing evidence and testimony, issuing opinions and making fact findings as they’re supposed to do, and when it gets up to the Supreme Court after all of that work has been done and the actual standards are considered in writing, it’s swept aside unsigned, unreasoned opinion, and so I think that it just makes the whole process all the more offensive.” (Ali, Hearing at 01:31:00–01:31:30.)
Overruling the lower courts in this manner is discouraging, disrespectful, and ultimately counterproductive since they are overruling without providing guidance.
OVERZEALOUS USE OF EMERGENCY OR EXTRAORDINARY WRITS:
According to Vladeck, the increase in shadow dockets orders coincides with the retirement of Justice Kennedy and the death of Justice Ginsberg and “the ascendancy of an idiosyncratic view about when emergency relief is appropriate.” (Vladeck, Hearing at 00:18:53–00:23:37.)
The granting of emergency relief normally follows a standard of review that includes a four-factor test: 1) the likelihood that the court would grant certiorari when the case comes before it on a proper appeal, 2) a likelihood of success on the merits to the applying party, 3) that there would be irreparable harm if relief is not granted, 4) a balance of equities showing that granting relief wouldn’t create greater harm to other parties or nonparties.
In recent years there appears to have been a shift in the Court’s consideration, “where the justices are almost exclusively focused on the merits,” in what has amounted to the disappearance of the balance of equities and of any considerations of whether there would be irreparable harm if relief was not granted. (Vladeck, Hearing at 00:39:55–00:42:01.) Applied correctly, taking into account the balancing test, many of these cases would not qualify as emergency relief cases.
As further evidence of the invalidity of these emergency writs, the justices will sometimes let a case sit unattended for weeks before suddenly declaring it an emergency. “Then the question becomes, do we really accept that all of these cases present the kind of emergent circumstances that require that kind of compressed schedule. I think that, one of the things that we’ve seen the last four years … we’ve seen the sort of idea of an emergency slide a bit where now … cases that the court is sitting on for perhaps weeks are still being handled through its procedure designed for expediency where expediency was not necessary.” (Vladeck, Hearing 01:26:30–01:27:40)
THE PROBLEM — CASE STUDIES OF SHADOW DOCKETS
Vladeck, at the Hearing, outlined four specific problems with the increase in shadow dockets and emergency orders.
“First, having more and more of the court’s significant decisions handed down through unseen, unsigned, and unexplained orders raises serious legitimacy questions since such rulings bear none of the hallmarks of principled judicial decision-making.
Second, they leave lower courts and government officials to speculate, and, as we have seen increasingly, disagree as to what the law actually is going forward.
Third, they invert the ordinary flow of litigation, leaving the court to prematurely, if not unnecessarily, resolve serious constitutional questions based upon undeveloped, or at the very least underdeveloped, factual records.
And fourth, they increasingly appear to be coming at the expense of the merits docket[.]”
(Vladeck, Hearing at 00:18:53–00:23:37.)
We review here how some of the challenges Vladeck outlined reveal themselves in recent shadow docket orders.
EXECUTIONS AND THE ESTABLISHMENT CLAUSE:
Aside from the esoteric argument that there needs to be more transparency, what is the harm? Ali gave a clear and stunning example of the shadow docket’s arbitrary treatment and tragic results. (See Ali, Hearing at 00:23:49–00:28:41.) The cases cited involve the death penalty for three men with different religious preferences: a Muslim, a Buddhist, and a Christian. Each of these men sought to have a spiritual advisor of their own faith present prior to the execution to guide them through the final moments of their respective lives. Each of them was told “no” by the prison officials or the State. But that’s where the similarities end.
- The Muslim asked for an Imam to be by his side, but he was refused. He was told he could have a Christian chaplain, but no Imam. A lower court recognized that his claim — that the government cannot prefer certain religions over others — was a powerful one so they stayed his execution. (A “stay,” in legal terms, is when the court suspends or pauses a proceeding, usually for further review.) In a split decision, the Supreme court reversed the stay, without addressing the lower court’s conclusions. The Muslim man was executed that night without any spiritual advisor to pray with him. See Dunn v. Ray, 586 U.S. ___ (2019), which includes only the dissent and no opinion.
- One month later, a Buddhist man asked for a Buddhist Priest by his side. Like the Muslim, he was told, no, he could only have an advisor from a religion that the State had chosen. This time, in an unsigned two-sentence order, the Supreme Court reached the opposite conclusion that it had reached with the Muslim. In a split decision, the execution was stopped. The one justice who did provide an opinion stated that it would have been okay to deny the Buddhist Priest if they had denied a Christian one as well. See Murphy v. Collier, 587 U.S. ___ (2019)), which includes individual opinions but no court analysis.
- A Christian man requested a pastor in the execution chamber. The lower court, in this case, took the Supreme Court’s latest advice via the Buddhist case and said there would be no spiritual advisor of any kind provided. This time, the Supreme Court, again in an unsigned order without legal analysis, but in a split decision, stopped the execution unless the man was provided with a Christian pastor as requested. See Dunn v. Smith, 592 U.S. ___ (2021).
See also this New York Times opinion piece asking Is Religious Freedom for Christian’s Only? It would seem so based on the pattern of cases here.
It’s important in cases like these to know what the standard of review was, and to know that the standard was being applied equitably in all cases. It would also be important to know how the individual judges voted so that we could parse out any inconsistencies from one case to the next. Alikhan addressed this in her testimony.
“[T]here was a decision to stay an execution and four justices put their name on it, but it takes five justices to rule on something, and so there was clearly someone lurking in the background that cast that vote but did not want to be accountable for it. And so, Justice Scalia wrote extensively about why having public records of one’s votes is very important in a system because it protects . . . [against] someone from taking one position one day and the polar opposite position the next day.” (Alikhan, Hearing 01:03:30–01:04:18.)
“Justice Scalia wrote extensively about why having public records of one’s votes is very important in a system because it protects . . . [against] someone from taking one position one day and the polar opposite position the next day.”
Government workers, no matter what agency, must meet an ethical standard that avoids not only impropriety, but also the “appearance” of impropriety. Governments operate as a public trust, accessing taxpayer money to advance the public good. In a time when police misconduct has become front page news, it is essential that the courts go out of their way to engender trust in the justice system. Handing down judgments that appear to be at best inconsistent and at worst discriminatory, without explanation in this political climate, is inconceivable.
The docket also should provide guidance for the lower courts to follow. In the case of the man asking for a Christian pastor, the lower court followed the most recently available guidance, which was that it was okay to deny one’s chosen spiritual advisor if it was done equitably and all such requests were denied. But the Court subsequently ordered that a pastor be provided, overturning that decision and undermining its own guidance.
THE PANDEMIC CASES:
Consider, also, a couple of the Court’s pandemic related injunction rulings:
- October 2020 the Court split in favor of reinstating South Carolina’s requirement that mail-in ballots be signed in front of a witness, despite the pandemic dangers it exposes and despite handing down the decision only weeks before the election. (See Moore v. Circosta, 592 U.S. ___ (2020), which includes a written dissent but no written opinion.)
- May 2020 the Court split in favor of overruling California’s pandemic restrictions in places of worship, thus opening church gatherings while leaving in place, without comment, the overriding pandemic-related restrictions that made the ban necessary and while departing from precedent of letting states determine their own health measures. (See South Bay United Pentacostal Church v. Newsom, 590 U.S. ___ (2020), which includes a written concurrence and a written dissent but no written opinion. A concurrence without an opinion?)
Since the opinion is missing, the standard of review is missing as well. The rulings appear to not take into account the irreparable harm or the balance of equities required in the four-factor standard of review for an injunction. How did the court balance the public policy concerns against the hardship and the possibility of mass scale death? The shadow dockets in these cases do not acknowledge that the four-factor test was applied, let alone how it was applied and how lower courts should handle similar cases in the future. As mentioned earlier, it appears the Court is focusing exclusively on merits without any consideration as to the balance of harm.
Representative Zoe Lofgren, D-California, 19th District, noted also with regard to the COVID cases that, in Santa Clara County, there were restrictions related to the type of activity that had nothing to do with whether you were a church or a gym or whatever, and so, “there is ambiguity on whether the Supreme Court really meant to exempt religious organizations from the rules about COVID that related to all organizations….” (Lofgren, Hearing 01:17:03–01:19:15.)
Representative Louie Gohmert, R-Texas, 1st District, tried to elicit testimony from Morley to justify President Trump’s travel ban in light of the pandemic. The response Morley provided could easily apply in a smaller geographic area to the pandemic cases noted above. “[T]here would certainly be a very strong argument that having a potential pandemic spread, if you know people are from a particular area where you have a highly infectious disease being spread, once they are allowed into the country, once they are allowed in to contact with the general public, you can’t unring that bell, right? Once the virus is spread, even if the court later on were to undo that ruling, the Court can’t order the virus out of people’s bodies, so that is the situation where the Supreme Court would likely find that there was irreparable harm, where there would be a balance of hardships tilting sharply in the government’s favor.” (Morley, Hearing at 01:12:09–01:13:03.)
“The Supreme Court plays an essential role in our constitutional system of government as part of our system of checks and balances. When the Court does not provide any rationale, any explanation for its decision, does not record its vote, does not allow for the affected parties to make their case, it is the Court that is going unchecked, and the American people are left to question what is happening behind closed doors.”
IN SUMMATION:
“The Supreme Court plays an essential role in our constitutional system of government as part of our system of checks and balances. When the Court does not provide any rationale, any explanation for its decision, does not record its vote, does not allow for the affected parties to make their case, it is the Court that is going unchecked, and the American people are left to question what is happening behind closed doors.” (Representative Greg Stanton, D-AZ, 9th District, Hearing at 52:05)
HOW DO YOU SOLVE A PROBLEM LIKE SHADOW DOCKETS?
Article III, Section 2 of the U.S. Constitution states that “the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” This has been interpreted to mean that Congress has the power to pass court reform and to impose guidelines on the Supreme Court. As with all Congressional action, the law needs to first pass out of the appropriate committee. In the House of Representatives this would be the Committee on the Judiciary.
According to Alikhan, Congress has the latitude, and the desire, to make necessary changes. “[T]he shadow dockets are related to the Court’s appellate jurisdiction, meaning its supervisory function over the lower court. As Article III [of the Constitution] confirms, Congress has the authority to superintend that Supreme Court’s appellate jurisdiction and regulate the lower courts; and Congress has done so before, both altering the cases the Supreme Court reviews, such as capital cases, and the standards lower courts must apply when issuing certain relief…. Accordingly, there’s a path for legislation if Congress deems it appropriate.” (Alikhan, Hearing at 00:34:11–00:39:18.)
Put another way, Representative Loui Gohmert, R-Texas, 1st District, stated, “[T]here’s only one federal court that is mentioned in the Constitution, all others rely on Congress for their very existence. We brought them into the world, we can take them out. We can create rules that are appropriate for them.” (Gohmert, Hearing at 01:08:43–01:11:42.)
“[T]here’s only one federal court that is mentioned in the Constitution, all others rely on Congress for their very existence. We brought them into the world, we can take them out. We can create rules that are appropriate for them.”
The lawmakers, in the hearing, appeared to be more united on addressing transparency issues than any substantive changes in procedure. Some of the different paths that they might take in reining in shadow dockets include:
- Redefining and limiting what qualifies as an emergency or extraordinary writ as codified in Supreme Court Rule 20.
- Restoring the Supreme Court’s mandatory appellate jurisdiction in death penalty cases where it would have to hear the appeals on the merits and therefore can’t just dispose of them in the shadow dockets. This would be the same as what is required for the armed forces, where their jurisdiction is otherwise discretionary but they are required to hear capital cases. (See Vladeck, Hearing at 00:01:07:56–00:01:08:27.)
- Making changes in the timelines in how long parties have to appeal so that the parties who won in lower courts can’t slow things down. And identifying particular classes of cases where those timeline can be significantly compressed. (See Vladeck, Hearing at 01:27:59–01:28:49.)
- Requiring that all shadow dockets show the number of votes for and against a holding.
- Requiring that all major holdings identify how the individual justices voted.
- Giving the courts more of an ability to rule on the merits cases quickly. “The court has the ability to move very quickly even on its merits docket. It has just fallen out of practice.” The goal then would be to find incentives for the court to return to being able to decide merits cases quickly without resorting to shadow dockets. (Vladeck, Hearing at 01:22:45–01:24:03.)
- Requiring that all major holdings include a standard of review regardless of whether it’s a shadow docket or not.
- Urging the justices to include enough analysis to satisfy the Court’s supervisory function over the lower courts.
- Transfer nationwide injunction lawsuits to the district courts.
The option of allowing the Court to issue a full opinion after the decision was issued was not included in my list of possible fixes. Vladeck pointed out as problematic a comparable setup exercised by the Supreme Court regarding the execution of Nazi saboteurs where they issued the rationale two months after the decision had been issued and after six of the eight saboteurs had already been executed. “And there’s, I think, a fairly broad consensus that that was, as Justice Scalia put it, not the Court’s finest hour.” (Vladeck, Hearing at 01:22:45–01:24:03.)
During the Hearing, the Republican Representatives on the committee, with some support from Morley, repeatedly circled back to nationwide injunctions as a culprit in the number of shadow docket cases, indicating that this may be one of the things they will try to regulate as part of this legislation. However, in response to an inquiry by Representative Dan Bishop, R-North Caroline, 9th District, Vladeck clarified that nationwide injunctions “are not a majority, and they’re not even a significant plurality of source of the shadow docket rulings.” (Vladeck, Hearing at 01:35:15–01:36:16.) More importantly, Representative Mondaire Jones, D-New York, 17th District, in his testimony pointed out the importance of these types of injunction in putting a check on administrative overreach. Specifically, he cited the injunction to suspend the postmaster general’s proposed operational changes — limiting postal services — in a transparent effort to undermine the election which was largely facilitated by mail-in ballots. (Jones, Hearing at 01:36:57–01:40:09.) It will be important, when drafting legislation to distinguish legitimate problems from opportunistic bids to limit public pressure on federal actions.
MAHALO MUCHO!!!
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