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Here’s what the ‘shadow docket’ is and how the Supreme Court uses it

By Paul LeBlanc, CNN

Chief Justice John Roberts turned heads this week when he criticized how the Supreme Court’s conservatives used the emergency docket, referred to by some as the shadow docket.

The shadow docket is simply the nickname for emergency actions taken by the court that do not go through the full briefing and hearing process of a formal opinion.

But how frequent are these emergency actions, and how do they affect the country?

For a better understanding of the shadow docket, we posed a few key questions to Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law, who is writing a book on the shadow docket. Our conversation, conducted over the phone and lightly edited for flow and brevity, is below.

CNN: What exactly is the ‘shadow docket’?

VLADECK: It’s an umbrella term that was coined in 2015 by Chicago law professor Will Baude, and it’s really meant to capture all of the orders and other miscellaneous rulings that the Supreme Court hands down every year other than the high-profile, high-visibility merits cases — the cases where the court hears oral arguments, it hands down these fancy rulings in May and June.

And so the term is not inherently pejorative. Rather, it’s really a reference to the obscurity and inscrutability of most of the court’s orders because by tradition, those orders are unsigned and they’re unexplained, and 99% of the time we don’t care because they’re also entirely anodyne.

CNN: Why is it so controversial?

VLADECK: Since the term came into even academic use, we really have seen a pretty stunning uptick in a particular type of shadow docket ruling. The legal term is it’s an “emergency application.” The better way to explain it is: It’s the court deciding what to do with a lower court ruling while an appeal challenging that ruling progresses.

So appeals take a lot of time. And the question is, while the appeal is pending, should we leave the lower court decision in place — whether it blocked a state or federal policy or didn’t block it — or should we actually alter the status quo?

And you know, what we’ve seen over the last really five years is both a qualitative and quantitative uptick in how many of these emergency orders the court is issuing and in how those orders are affecting all of us.

As recently as 15 years ago, most of the emergency orders the court was issuing were in death penalty cases. Those are obviously a big deal to the state and to the death row inmate, but they tend not to affect our day to day lives.

Lately though, we’re seeing emergency orders on everything from OSHA’s vaccination rule to the Texas abortion ban to Alabama’s redistricting, and the list goes on and on. We’re seeing the court do a lot more of this in orders that affect a lot more people while still hewing to the older norms that they don’t sign these orders and they don’t typically explain them.

CNN: So it’s not just the kind of cases falling into the shadow docket process, but the number as well?

VLADECK: It’s the substance of these cases. It’s the number of them. And it’s the fact that the court is for the first time treating these orders as precedential — meaning that the Supreme Court is expecting lower courts to give these orders effect, not just in the cases in which they’re handed down, but in other cases raising similar issues.

That’s a cause for concern because whatever you think of the merits in these cases, the court’s legitimacy depends upon its ability to offer principled justifications for what it’s doing. I mean just Monday night, Justice Amy Coney Barrett in a speech at the Ronald Reagan library said, “For those of you who are concerned that we’re partisan and that were playing politics, just read our decisions.”

Well, on the shadow docket, there’s nothing to read.

CNN: If someone is reading this and doesn’t like the idea of the shadow docket, is there anything they can do?

VLADECK: I think drawing attention to it is the first step. But I think it’s also worth stressing that, at least historically, the court’s docket was a matter of frequent and regular congressional interest. For the first 200 years of the Supreme Court’s existence, Congress was regularly involved in conversations about the shape and size of the court’s docket, which kinds of cases the court was hearing, how much business it was conducting.

And I think one of the diseases of which the shadow docket is a symptom is that Congress has gotten entirely out of that business. The last time Congress meaningfully addressed and reformed the Supreme Court’s jurisdiction was in 1988.

So I think that part of the problem is that to contemporary eyes, this looks like a court that can’t be checked. And the historical reality is that there are checks. The checks come from the legislature.

CNN: Do you think John Roberts taking the stance he did will have any sort of tampering effect on shadow docket cases moving forward?

VLADECK: It’s a good question. Time will tell.

I think part of it also is the chief justice’s audience is not just the other conservatives on the court. I think there are a lot of folks in the legal establishment who listen to anything John Roberts says.

CNN: Anything else you’d like to add?

VLADECK: A common rhetorical trope is that there’s nothing new here. That the court has always had a shadow docket. That, you know, there have always been controversial decisions on the shadow docket.

And there’s a degree to which that’s true, right? Like there’s always been a shadow docket — weird things have happened. LBJ was able to steal the 1948 Democratic Senate primary in Texas because of a shadow docket order. The list of like crazy shadow docket rulings historically is long.

What is different about what is happening today is a combination of three things. It is how often this is happening. It is how widespread the effects of these rulings are. And it’s the court’s own insistence that these rulings are precedential.

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