The "Shadow Docket" and things that go Bump in the Night

One of the things that the Texas Abortion non-ruling exposed to many Americans is the use of "Shadow Docket" of the Supreme Court. The shadow docket is relatively unknown to us all, but has grown significantly as the court uses this expansive power to rule on significant issues under the conservative court. So what is it?

I'm going to post three quick paragraphs from a story in the New York Times which is quite clear when describing the shadow docket. You can check other stories, but these three paragraphs are the clearest I've seen.

What is the "Shadow Docket"

First, some background. The shadow docket refers to emergency orders and decisions made outside of the court’s regular docket of cases, usually without oral arguments. The term was coined six years ago by William Baude, a law professor at the University of Chicago, but the division between regular cases and this more specialized set has been around for decades. All it takes to get on the docket is to appeal to one justice, who then decides whether to forward the matter to the rest of the court.

Why is it a big deal?

Many of these orders are minor and procedural, but others deal with high-stakes issues of national concern. In recent years, and especially during the Trump administration, the court has relied on the shadow docket to make consequential decisions on a wide range of issues. Often, the court issues its decisions from the shadow docket without signed opinions or detailed explanations of the kind you would find in an argued case.

In the last five months, the Supreme Court has used the shadow docket to strike down Covid restrictions on group religious activities in private homes, force President Biden to reinstate the Trump-era “remain in Mexico” policy for asylum seekers from Central America and block the extension of an emergency federal ban on evictions, putting countless Americans at risk of homelessness.

Regardless (or irregardless - an odd American English hiccup in which two antonyms mean the same thing) of whether you agree with the decisions or disagree, the use of the shadow docket reduces faith in the Supreme Court as an institution. It does this because there is a lack of transparency and the impression that the rulings are arbitrary at best and political at worse. And these serious issues are NOT being addressed by signed court rulings, but by decisions that are unsigned and often decided by a single Judge.