By Gloria J. Browne-Marshall
“The Supreme Court’s Shadow Docket”
Gloria J. Browne-Marshall is host of “Law of the Land” on WBAI 99.5FM. WBAI.org, author of “She Took Justice: The Black Woman, Law, and Power,” professor of constitutional law at John Jay College (CUNY), and a playwright.
Browne-Marshall: With truncated briefing, no argument, little or no public explanation, no vote tally to guide the parties before the Court or to inform lawyers and lower Courts and future cases and decisions that often come down in the middle of the night. It’s hard to think of a better term for the great majority of the Supreme Court’s output today than a docket that exists in the literal and metaphorical shadows. Those are the words of Steve Vladeck, author of “The Shadow Docket.”
Vladeck: Thanks for having me, Gloria.
Browne-Marshall: We’ve worked together in the press pool at the Supreme Court. As the Charles Alan Wright chair in federal Courts at the University of Texas School of Law and author of other books, shy should we be more frightened about the Court than we have been in previous decades?
Vladeck: I think the biggest theme tying together so many of these current stories about the Court is a lack of accountability. We’ve had a conservative majority on the Court in the past. What’s new about the moment we’re in is just how little the justices are accountable to us, accountable to the political branches. For so much of the first 200 years of our history, Congress was actively involved in overseeing the Court, regulating the Court, controlling the Court docket, pulling levers to exert control over the justices. That’s basically gone away.
Browne-Marshall: So, the Court has amassed, I guess, from a small part into a monster, what they’re doing is when it comes to certiorari, and the shadow docket. What is the shadow docket?
Vladeck: When most of us pay attention to the Supreme Court, we’re usually focused on what might be called the merits docket, the big, high profile decisions. But the reality is that that’s a very small part of the overall output of the Supreme Court. The term shadow docket was coined by a Chicago Law Professor, Will Baude, in 2015, really to capture that piece of the Court’s work, which by volume turns out to be like 99% of what the Supreme Court does.
The problem is that this power, the power to do so much of their work in the shadows, has expanded a lot in recent years, and has given the Court all this discretion, and more power. For the first 100 years of the Court’s existence, it had no control over its docket.
The result is that we have a Supreme Court that’s actually doing less work. But the work that it’s doing is in cases that are more socially divisive and ideologically charged. That’s related to how we got to the point we’re in today, where the Supreme Court basically is just doing whatever the six conservative justices want it to do, as opposed to what folks like you, or I, or folks listening, might think, because what we want the Supreme Court to be doing more broadly.
Browne-Marshall: But what type of decision is a shadow docket decision?
Vladeck: This is when the Supreme Court says we are not going to take up an appeal from a lower court decision. Those are almost always unexplained. They’re always unsigned. The orders that I think have more immediate impact, a good example is on what’s called the emergency docket. This is when a case hasn’t yet made it to the Supreme Court, but a party that lost below wants the justices to step in and adjust the status quo while their appeal goes forward.
A recent example of this involves congressional redistricting in Alabama and Louisiana. Alabama and Louisiana, both redrew their US House districts after the 2020 Census. In both states, the new maps were challenged on the ground that the states had failed to provide a sufficient number of districts to represent the minority in both states, the Black population. In Alabama, which has a population that’s 27% Black, the new map had only one district out of seven that had was a Black opportunity district, where there are a majority of voters who could actually dictate their policy preferences. Lower courts held that that was unlawful and said that Alabama and Louisiana, both had to redraw their maps to create a second, so-called majority-minority district.
The shadow docket rulings from the Supreme Court where last spring, when the Court without any explanation, put those lower court rulings on hold, and basically said, we will allow Alabama and Louisiana to use their unlawful maps, in the 2022 midterms. That meant that you had an additional seat in the House of Representatives safe Republican seat. They would have been at least competitive seats, and possibly even safe democratic seats. Right there, you have two rulings that the Court handed down last year, both of which were unexplained, both of which were unsigned, that had this immediate effect on the representation of minority voters in Alabama and Louisiana, and indeed, even on the composition of the House of Representatives. The Supreme Court handed down unsigned, unexplained orders that are producing pretty significant real-world effects.
Browne-Marshall: When we talk about unsigned, what we are saying when one reads a US Supreme Court decision, we know who wrote the decision because their name is there. We know who dissented. We know if they dissented. All the names are listed and their rationale for deciding how they decided. You speak of Justice Kagan, who dissented in a very pronounced way to this whole sense that the majority gave a particular shadow docket decision.
Vladeck: The case you are referring to, was in September 2021, a high-profile order at like 11:58 pm on a Monday night. The Supreme Court issued five to four rulings in which it refused to stop Texas’ controversial six-week abortion ban. First, the Court didn’t really explain why it was letting this, at least at that point, clearly unconstitutional law go into effect. Justice Kagan called out the five justices in the majority, for not explaining themselves for using emergency orders in a way that would produce such a massive offense on the ground. Chief Justice John Roberts, no fan of abortion or reproductive rights, was one of the dissenters. John Roberts dissented. The Alabama redistricting ruling was five to four, again, because John Roberts, no fan of the Voting Rights Act, also dissented. That shows that this is not just ideological, liberals versus conservatives. Complaints about the shadow docket and the Supreme Court, doing so much through these unsigned unexplained orders, are not just complaints of disaffected progressives.
When John Roberts has objected, when he’s saying, this is not how we should be behaving. I think that carries even more force, frankly, than the powerful dissents from Justice Kagan and Justice Sotomayor, because now you have one of the Court’s conservatives saying, hey this is not the way to run a railroad.
Just to go back to where we started. This, to me is the broader problem here, which is, in times past, 30,40,50 years ago. If we got to this point with the Supreme Court, we could have expected a lot of pushback from Congress. Pushback in the forms of docking the justice’s budgets. There’s actually this remarkable example in 1964, where Congress gave a pay raise to every federal judge, except the Supreme Court because they were mad at the justices. That was the relationship that we had for so long. Fast forward to today, when the Supreme Court engages in behavior that’s deeply problematic. Where even Chief Justice Roberts is calling it out. The response from Congress is crickets. I think that’s a big part of why we are where we are with the current Court. Not that the justices are necessarily acting in bad faith, not that they have sort of whatever the worst possible explanations for their behavior. You don’t have to believe that, to believe that there’s a serious lack of accountability.
Browne-Marshall: In this book, The New York Times bestseller “The Shadow Docket: How the Supreme Court uses Stealth Ruling to Amass Power and Undermine the Republic,” you give examples of how this shadow docket began around death penalty cases, and then moved up to Donald Trump’s travel ban.
Vladeck: Most of the Court’s modern approach to these kinds of emergency applications really can be traced to the late 1970s, where after the justices re-authorized the death penalty, in 1976. We see an explosion of last-minute requests from prisoners on death row, especially in Southern states for emergency relief from the Court for a stay of execution, so that they can continue to challenge their conviction or their sentence, without being executed. You can’t challenge it once you’re dead.
For the first time, it started in 1980, the Supreme Court begins handling emergency applications as a full Court as opposed to having the single justice who has geographic responsibility for that part of the country handle them. That means that the Court stopped holding oral arguments on emergency applications. The Court stopped writing explanations for emergency applications. In the 1980s death penalty cases, we saw the rise of these full Court orders, whether blocking executions or unblocking executions that are neither signed nor unexplained.
It’s only in the mid-2010s and you see a huge uptick in requests for emergency relief from President Trump. That this pattern, these pathologies, start expanding into all areas of domestic policy. One data point illustrates just how profound an effect Trump had. Between 2001 and 2017, that’s the Bush and Obama administration, two very different two term presidencies; the Supreme Court was for emergency intervention, a total of eight times. That’s once every other year, in four years.
Trump goes to the Court 41 times and the Court grants relief. They rule for him in 28 of those cases. This problematic behavior hit the mainstream, on everything from [Trump’s] travel ban to the border wall to COVID mitigation measures, to congressional districts to elections. What the book really tries to tell it tries to tell the history of how the Supreme Court gradually, claimed more and more power to rule in these kinds of ways, and how starting with the Trump cases, we see that power being used for rulings that are directly affecting all of us to a far greater degree than ever before.
Browne-Marshall: Now we’re without a measure as to what we can and cannot do as lawyers, as Courts, as citizens. What guidance are we to get from these shadow docket decisions?
Vladeck: That’s the problem. I mean, I think there are two different issues here. The first is, when you don’t have an explanation. That means lower Courts, it means government officials, it means, you and I, right can only guess as to why the Court has ruled the way it does, that has problematic effects. It’s also important for separating the judges and the justices on the Supreme Court, from politicians. When you have more and more rulings, producing broader effects on the ground, where there are no principles, and where, if you look at the overall body of rulings, there’s no even sort of unspoken explanation that tells you why the Courts ruling this way. When instead, what it appears is that the justices are voting their policy preferences, and they’re not providing any rationale to counter that.
You have the justices really looking like they’re just politicians, voting for some policies, voting against other policies, and not deigning to provide a neutral principle justification that would allow for a similar legal argument from a different political actor to have to have force in the next case. That’s why I think in some respects, the shadow docket is an even bigger part of what’s wrong with the current Court than even the most problematic decisions we see on the merits docket.
Browne-Marshall: Justices voting their policy preferences as opposed to applying the law and then being held accountable for the decisions that they make.
Vladeck: I think we’ve seen in the last 16 to 18 months, a little bit of moderation in the behavior of justice Brett Kavanaugh, justice Amy Coney-Barrett, they’re not voting for emergency relief, as often. We’re not seeing as many 5-4 and 6-3 rulings on the shadow docket. We’re seeing more cases where Justice Alito is dissenting and is angry about it. I think there’s been some movement on that front. It ought to be amenable to public pressure and public criticism. They’re band aids that are only going to temporarily cover over the far bigger problems here, which is that we have a Supreme Court that has basically become completely unchecked.
It’s deciding fewer cases every year. It’s deciding only the cases that it wants to decide, where the justices are keeping their own counsel about whether they’re complying with the relevant financial disclosure and ethics rules. Part of why I wrote the book is because I think the more that we talk about the Supreme Court as nothing other than the sum of its merit decisions, the more we miss out on all the ways in which as an institution right now, it’s unhealthy. It’s not that the Court shouldn’t have power, it should. But that power is meant to be checked. I think the shadow docket is a symptom of how unchecked the Court is.
Browne-Marshall: Thank you, Steve Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law and author of “The Shadow Docket: How the Supreme Court Uses Stealth Ruling to Amass Power and Undermine the Republic.”