Abortion ruling and the Supreme Court’s shadow docket

It sounds dramatic. It sounds nefarious. But the United States Supreme Court’s “shadow docket” is not new. What is new, however, is how the court has been using it.

In the space of 10 days, the justices have put the shadow docket – every decision the court makes not on the merits docket – in the headlines with a trio of brief but seismic opinions. 

Last week, in a one-paragraph, unsigned order, the court prevented the Biden administration from reversing a Trump-era border policy. Two days later, in an unsigned eight-page order, it ended the federal government’s pandemic-related moratorium on evictions. And late Wednesday night, the court denied an emergency application to block a strict Texas abortion law from going into effect – a decision the chief justice himself said was without precedent. The order offers anti-abortion activists their biggest win in 48 years.

The orders all came with objections from the court’s three liberal justices – with the Texas abortion order also registering a dissent from Chief Justice John Roberts. And they all illustrate the Supreme Court’s increased willingness in recent years, experts say, to use the shadow docket to decide major policy issues affecting large numbers of people in a perfunctory and opaque manner. 

“The statutory scheme before the Court is not only unusual, but unprecedented,” Chief Justice Roberts wrote of the Texas law, which, rather than have the government enforce the law, creates a legal bounty system whereby any person can sue those involved in helping a woman obtain an abortion in the state after six weeks. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large.”

That shift of controversial decisions from the court’s main docket to the shadow docket is breeding confusion among plaintiffs and lower courts, and potentially damaging the legitimacy of the high court itself, court watchers argue.

Last night’s Texas decision, in particular, has the potential to clog the courts. 

So what is the shadow docket exactly?

The docket is, in essence, everything the Supreme Court does outside of its merits docket (the cases where it receives full briefing and arguments before ruling). Its use can be traced back to the court’s very first day, Feb. 1, 1790, when its clerk, John Tucker, recorded that the justices had failed to meet quorum.

Indeed, the orders that make up the shadow docket fit broadly into two types: routine, procedural (read: boring) matters, such as recording attendance or allowing a party extra time to file a brief; and emergency petitions the court is asked to act on before the full appeals process can unfold because the party claims it will suffer “irreparable harm” without it.

A common example of the latter are death penalty cases, but most of the roughly 6,000 shadow docket orders each term have minimal ramifications. Because they are made without a full lower court record, detailed briefs, or oral arguments, shadow docket orders are typically short, light on reasoning, and often unsigned.

“The overwhelming majority of the Supreme Court’s work is unsigned orders,” said Steve Vladeck, a professor at the University of Texas School of Law and a leading expert on the shadow docket, on the SCOTUSblog podcast in July.

“Most of those are anodyne,” he added.

Has something changed?

In short, yes.

The Supreme Court “is doing more and more stuff that is not anodyne on the shadow docket,” Professor Vladeck said. “More and more of these orders are actually having pretty significant effects well beyond individual cases.”

And this shift is evident both anecdotally and statistically.

Over the 16 years that spanned the George W. Bush and Barack Obama White Houses, those administrations asked the high court to stay a lower court ruling on eight occasions, and were successful four times. In four years, according to Professor Vladeck, the Trump administration filed 41 stay applications. The court granted 28 in part or in full.

“Traditionally the Supreme Court exercised restraint, intervening through the shadow docket only after identifying extraordinary circumstances and irreparable harm that would result” from inaction, writes Amir Ali, deputy director of the Supreme Court & Appellate Program at the MacArthur Justice Center, in an email.

“The practice has changed because the Supreme Court has allowed it to change,” he adds. “Once the Supreme Court signaled that it would be willing to use the shadow docket in this way, parties who felt the Supreme Court would be sympathetic to their causes took notice.”

Is there an ideological aspect to this shift?

The Supreme Court has had a conservative majority for decades – and has grown more conservative in recent years. The Trump administration repeatedly leapfrogged lower courts to appeal directly to the justices, and was often rewarded.

In its first year, the Biden administration has made fewer direct appeals to the high court, and it’s had little success. So far, the court has also provided some explanations for ruling against the federal government.

Despite COVID-19 cases again climbing around the country, the court echoed concerns from earlier cases on the eviction moratorium in finally ordering an end to it. In the Trump-era “Remain in Mexico” policy case, the court cited its ruling last year that the Trump administration had not followed proper processes when ending an Obama-era policy. In seeking to end the Trump policy, the court ruled, the Biden administration had made the same mistake.

But in an April shadow docket order, after a 5-4 vote, the court granted an emergency request to block a California regulation limiting gatherings within houses of worship because of the pandemic. And last night, with the same 5-4 alignment, the court denied a similar emergency request concerning the Texas abortion regulation.

Particularly with controversial cases like those, it can be difficult for lower courts and plaintiffs to predict how the court will act, or interpret how it acts. The often sparse (at best) reasonings in shadow docket orders leave “a fog of uncertainty as to exactly what the standards are in different categories of cases,” Professor Vladeck wrote in a 2019 law review article.

With those two 5-4 rulings at least, the court is sending mixed signals. You see “a court untroubled by procedure [that] went out of its way to expand religious liberty, but hid behind procedural [questions] to refuse to enforce a right [to abortion] already on the books,” Professor Vladeck tweeted Thursday morning.

What does this mean for the court’s legitimacy?

Congress has voiced concerns about the shadow docket, which is notable in and of itself – even more so given those concerns have come from members of both parties.

In a House Judiciary Committee hearing earlier this year, Republican Rep. Louie Gohmert of Texas criticized the court’s unsigned orders. “I am a fan of judges and justices making clear who is making decisions,” he said.

The lack of transparency is a concern, but another key point is how little information the Supreme Court makes decisions with in the shadow docket, compared with the merits docket. There is a limited lower court record and no briefings or oral arguments. Traditionally that has been offset by the court itself being selective in how and when it uses it, but as explained above, the court has been getting less selective.

What’s driving the shift? “It’s some combination of a Court that is eager to put its stamp on these issues,” writes Steven Schwinn, a professor at the University of Illinois Chicago School of Law, in an email, “and litigants who seek more aggressive Court intervention at early stages in hot-button cases.”

Justice Stephen Breyer raised this point in his dissent to the court’s eviction moratorium ruling.

“These questions call for considered decisionmaking, informed by full briefing and argument,” he wrote. “Their answers impact the health of millions. We should not set aside the ... eviction moratorium in this summary proceeding.”

And in an interview with The New York Times, he said that the court should be deciding fewer emergency applications.

“I can’t say never decide a shadow-docket thing,” he told the Times. “Not never. But be careful.”

For Mr. Ali, the legitimacy of the U.S. judicial system “depends on judges offering principled, legal opinions that support the outcomes they reach,” he says. “Deciding major issues and disputes through unsigned orders is not what anyone should want for our judicial system.”