On September 1, the Supreme Court allowed Texas’s SB 8 to go into effect. This law, which Justice Sonia Sotomayor called “a breathtaking act of defiance — of the Constitution, of [the Supreme] Court’s precedents, and of the rights of women seeking abortions throughout Texas,” allows anyone to sue abortion providers in Texas if they assist in performing abortions after the six-week mark of pregnancy. This ruling was roundly criticized by the public and four justices in dissent: Chief Justice John Roberts, plus justices Sotomayor, Stephen Breyer, and Elena Kagan. In her dissent, Kagan wrote that the “ruling illustrates just how far the Court’s ‘shadow docket’ decisions may depart from the usual principles of appellate process.” By doing so, she added her voice to the crowd criticizing how this conservative Court has used its shadow docket to destabilize American law and force conservative outcomes on the public in the dead of night.
What is the shadow docket?
To explain what the shadow docket is, let’s begin by describing the normal docket for the Supreme Court, also known as the “merits docket.” Generally, the Court hears about 100-150 merits cases in a single year, and these are the cases you generally hear about during the summer. These cases come to the Court on appeal after lower federal courts or state courts have taken up the cases and made a ruling. Importantly, the Court makes rulings in these cases almost always after the lawyers for both sides (and others, called amici curiae, or friends of the court) have submitted arguments in writing and made oral arguments in front of the Court.
Now, compare the merits docket to the shadow docket, a term coined by University of Chicago law school professor William Baude. At any time, the Court may issue emergency orders in cases at all levels of the federal courts, including orders to stay (pause) lower court orders; orders granting injunctions (an order compelling one or both parties to do or stop doing something); and even reversals of lower courts without any explanation. As both Baude and University of Texas law school professor Steve Vladeck have described, these orders involve much, much less input from the parties and the public; almost never include the reasoning for said order; and do not generally tell us which justice voted in which way unless enough justices choose to note only their dissent on the record.
What are the problems with the shadow docket?
The Supreme Court has always had a shadow docket. But the issue isn’t with the existence of the shadow docket; rather, the issue is with the way it is being used by the Court’s current radically conservative majority. There are regularly over 6,000 shadow docket rulings each year. While most of these 6,000 are uneventful freezes of the status quo so that the Court can hear cases through the regular merits docket, an increasingly large number of these orders upend major portions of American law while flying under the radar. For example, in the past two years, the Court has, through the shadow docket:
- blocked COVID restrictions in California, making it difficult for states to enact common-sense public health measures...
- ...twice;
- allowed Florida’s disenfranchising pay-to-vote law to go into effect despite it being flagrantly unconstitutional;
- allowed the Trump administration to use funds to expand the border wall despite every single lower court finding that using those funds was unlawful;
- and opened the door for more and more executions.
To quote Baude, “This is no way to run a railroad.”
There are a few problems here. First, pushing everything onto the shadow docket means that every order comes without much argument and with little input or oversight from the public. The Court is fond of saying that it is a “court of review, not of first view.” But when it comes to the shadow docket, the Court sees no problem with inserting itself in a case very early on to put its thumb on the scale in one direction or another — disregarding the benefits of public discussion.
Second, upending the law via the shadow docket seriously destabilizes both the law and the public’s ability to rely on the law. It also makes it extremely difficult for other judges, other government officials, and the public at large to figure out exactly what the law is on serious issues.
We’re seeing this play out in Texas and beyond as many of us contemplate what the abortion ban means for Roe v. Wade. Is that midnight, unsigned, and unreasoned order meant to apply only to a small number of cases or to a wide swath?
Finally, as Vladeck has found, the voting majorities in the shadow docket cases are much more strictly partisan than in the merits docket cases. In other words, the Court’s right-wing majority appears to be using the shadow docket to engineer conservative outcomes in a way that tries to hide from the public that it is doing so.
What can be done?
As more eyes turn to the Court and its questionable use of the shadow docket, congressional lawmakers are contemplating potential legislative solutions that can increase the Court’s transparency and create alternative mechanisms for the Court to quickly take on emergency cases. In February, a House Judiciary subcommittee held the first ever congressional hearing dedicated to the Court’s shadow docket — a hearing that received bipartisan agreement on the need for reform. In response to the latest Texas abortion shadow docket ruling, the Senate Judiciary Committee held a hearing that examined “the Supreme Court’s abuse of its ‘shadow docket.’”
Congress should absolutely be investigating and examining the shadow docket through hearings, but hearings alone don’t reckon with the urgency of the issue. We’ve ended up in a place where women in Texas are prohibited from receiving abortions by way of an order issued by the Court in the middle of the night. The shadow docket is merely a symptom, a vehicle that is being weaponized by individuals who have been vested with an immense amount of unchecked power. This brute display of force is happening on the merits docket too. The Court has agreed to hear Dobbs v. Jackson Women’s Health Organization, an abortion case challenging Roe v. Wade directly, in the near future.
As many have noted, this Court isn’t a nonpartisan, above-the-fray body — far from it. It has regularly bent every rule and disregarded every doctrine to help the Republican Party, its donors, and its interests. Rhode Island senator Sheldon Whitehouse found that in the 73 split-decision cases between 2005 and 2018 in which Republican Party donors had a clear interest, the donors’ side won every single time. We shouldn’t have to be subjected to the whim of a Court that has demonstrated it is cemented in conservatism.
The only other reform that undoes the current stranglehold on the Court is expansion. The Judiciary Act of 2021, a bill that proposes adding four seats to the Court, has already been introduced in both the House and Senate. Contact your representatives and senators and ask whether they support the Judiciary Act. If they don’t, ask what their plan is on Court reform and continue to hold them accountable on what they promise to learn and do. You can also join us at the People’s Parity Project and organize with us in this fight.
The crisis moment is here. We can’t afford to continue having a Court that operates in the shadows. We must act now.
Want more from Teen Vogue? Check this out: Buck v Bell: The Supreme Court Case That Fueled the Eugenics Movement
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