Casting a Bright Light on the Supreme Court's Shadow Docket//NY Times
Review by Jennifer Szalai June 25, 2023
THE SHADOW DOCKET: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, by Stephen Vladeck
“Because Y is a crooked letter”: The first time I heard a parent saying this to her child it took me a few beats to understand what she meant. The boy had been asking, “Why?” about a perceived injustice — an order to leave the playground before he was ready. The mother’s response was simply a poetic variation of that old standby “Because I said so.” No explanation was forthcoming because none was needed. Mom was laying down the law. The kid had to obey it. Case closed.
I was reminded of this episode as I read Stephen Vladeck’s important new book about the Supreme Court, “The Shadow Docket.” The title draws a direct contrast with the so-called merits docket that we usually associate with the court, which includes extensive briefings, comprehensive oral arguments and written opinions that are signed by the justices, detailing their reasoning. But merits decisions turn out to be “only a small sliver” of the Supreme Court’s output, Vladeck writes. All the soaring rhetoric and painstaking legal analysis amount to little more than 1 percent of the court’s decrees.
That’s right — almost 99 percent of the court’s decisions take place on the shadow docket, a term that was coined in 2015 by the conservative legal scholar William Baude for those orders that aren’t subject to the “high standards of procedural regularity set by its merits cases.” Orders on the shadow docket are, in Vladeck’s description, “unseen, unsigned and almost always unexplained”: the juridical equivalent of “Because I said so.” While such summaries aren’t new — they arose over the last century as a way to help the justices manage their growing caseload — Vladeck argues that they are being deployed more frequently and in increasingly novel ways. The shadow docket doesn’t just serve as a neutral realm of routine case management; instead, “the court’s new conservative majority has used obscure procedural orders to shift American jurisprudence to the right.”
Vladeck, a professor at the University of Texas School of Law and an analyst at CNN, chronicles how the shadow docket came to be. He traces the development of a generally weak Supreme Court in the antebellum era to one that by the early 20th century had expansive discretion to decide which cases it wanted to hear (and which it didn’t) by granting (or denying) what’s known as a “writ of certiorari” as part of its shadow docket. But it was capital punishment, he says, that really gave rise to the shadow docket as we know it. The finality of an execution meant that all appeals needed to be fully resolved before a person was put to death. A prisoner seeking emergency relief from the court could petition for an expedited ruling, arguing that an unlawful execution would cause “irreparable harm.”
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