The Supreme Court’s Shadow Docket

The Supreme Court’s recent ruling in Whole Woman’s Health v. Jackson has brought renewed attention to the high court’s shadow docket. The case involved an application for injunctive relief to prevent enforcement of Texas Senate Bill 8. This is one of the most restrictive abortion laws in the country.

In a mere 72 hours from the date the application was filed, the Supreme Court handed down its single paragraph decision. The Supreme Court refused to block Texas Senate Bill 8. In marked contrast to its decision in Whole Woman’s Health v. Jackson, the Court’s decision in Roe v. Wade was 53 pages. That one took the Court nearly two months to decide.    

Both Roe v. Wade and Whole Woman’s Health v. Jackson concerned a Texas law restricting a woman’s right to abortion. Even though both cases involved the same subject matter, the procedure used by the Court to enter its decision on the cases was vastly different. Why the difference? The answer: The Court decided Whole Woman’s Health v. Jackson using its “shadow docket,” while it decided Roe v. Wade as a “merits case.” 

The Shadow Docket

The term “shadow docket” refers to the Court’s orders and decisions that do not conform to its normal procedures. It is also called the “orders list.” The “orders list” has historically consisted of cases that grant or deny certiorari. This also includes emergency relief applications, time extensions for deadlines, and other routine scenarios.

When the Court enters an order or decision on its shadow docket, it does so without the usual filing of legal briefs and oral arguments. These hurriedly entered decisions and are often unsigned without the Court giving the reasoning for its decision.  

Merits Cases

Unlike cases decided on the order’s list, merits cases follow the Court’s regular unhurried, deliberative process. The Court makes its decisions based on its meticulous review of the numerous written legal documents filed in the case. It also includes a detailed questioning of the attorneys representing parties in the case during oral argument.

It can take months for the Court to issue a decision on a merits case. When it delivers its opinion on a merits case, the Court clearly explains in detail the reasoning for the Court’s decision. These opinions become the basis of our legal system. 

Criticism of the Shadow Docket

Stare decisis is the foundation of our judicial system. It requires courts to follow the rulings in historical cases when making a ruling on a similar case. Under this doctrine, cases with similar facts and legal issues should have the same outcome regardless of the court who enters the judgment on the case.

The Supreme Court has stated stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles.” It also “fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”

In order for stare decisis to work, decisions issued by the Supreme Court must have a thoroughly developed and reasoned analysis of the legal rules applied by the court. 

Lack Of Transparency

When the Supreme Court issues order and decisions on the shadow docket, however, it offers little to no explanation for its decision.  This lack of transparency and judicial analysis offers lowers courts little guidance regarding how they should apply the precedent established by the decision. 

The lack of transparency in shadow docket decisions may also result in the deterioration of the public’s trust in the Court.  William Baude, a University of Chicago Law professor, first coined the term “shadow docket.” He contends that it makes it “hard for the public to know what is going on.” Furthermore, it makes it “hard for the public to trust that the court is doing its best work.”  

Critics of the Court’s use of its shadow docket also argue that it gives the Court an unreasonable amount of power.   Nicholas Stephanopoulos, a law professor at Harvard University, argues 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,” he continued, “then they’re just acts of will, or power.  They’re not even pretending to be legal decisions.”

The Court’s opinion of its use of the shadow docket

One Supreme Court Justice also seems to be in disagreement with the Court’s use of the shadow docket.  In her dissent in Whole Woman’s Health v. Jackson, Justice Kagan wrote, “Today’s ruling illustrates just how far the Court’s ‘shadow docket’ decisions may depart for the usual principles of appellate process.”

She went on to say, “[T]he majority’s decision is emblematic of too much of this Court’s shadow-docket decision making—which every day becomes more unreasonable, inconsistent, and impossible to defend.” 

Justice Samuel Alito disagrees with Justice Kagan, however. On Thursday, September 30, Justice Alito defended the Court’s use of the shadow docket. The purpose of Justice Alito’s lecture at the University of Notre Dame was to “dispel some imaginary shadows” recently asserted by the media and certain political spheres that the Court’s use of the shadow docket has been “sneaky or dangerous”. 

“[T]here is absolutely nothing new about emergency applications,” Alito said. The justices do “the best we can” given the time constraints imposed by the emergency applications. 

Justice Alito stressed that in their review of the petitions on the shadow docket the justices weigh the harms claimed by the parties and the probable outcome of the case.

-REC